4.27 Choice not to Testify or Present Evidence Defendant’s did not testify (Name of defendant)(A defendant) (did not present evidence) in this case. A defendant has an absolute constitutional right not to testify (or The burden of proof remains with the prosecution to present any evidence). throughout the entire trial and never shifts to the defendant. The defendant is never required to prove that he is innocent. You must not attach any significance to the fact that did not testify. You must not (name of defendant) draw any adverse inference against because did not take (him)(her) (he)(she) the witness stand. Do not consider, for any reason at all, the fact that (name of did not testify. Do not discuss that fact during your defendant)(a defendant) deliberations or let it influence your decision in any way. Comment California Criminal Jury Instructions § 355 and § 5.21. For variations, See see et al., supra, § 15.14; First Circuit § 3.03; Sixth Circuit § 7.02A; Seventh O’Malley Circuit § 3.01; and Ninth Circuit § 3.3. Under the Constitution, the defendant in a criminal case has the right to choose whether to testify and the right not to present any evidence. Neither the court nor the prosecutor may comment on the election to remain silent at trial. See Griffin defendant’s 380 U.S. 609, 614-15 (1965); 925 F.2d 1527 (3d Cir. v. California, Lesko v. Lehman, 1991). 461 U.S. 400, 510-11 (1983) (holding error But see United States v. Hasting, harmless). If the defendant chooses not to testify, the defendant may also decide to request an instruction directing the jury to draw no negative inference from the decision not to take the witness stand. The trial court must give such an defendant’s instruction if requested. 450 U.S. 288, 299-303 (1981); See Carter v. Kentucky, Bruno v. 308 U.S. 287, 293-94 (1939). Failure to give the requested instruction is United States,
4.27 Defendant’s Choice not to Testify or Present Evidence (Name of defendant)(A defendant) did not testify (did not present evidence) in this case. A defendant has an absolute constitutional right not to testify (or to present any evidence). The burden of proof remains with the prosecution throughout the entire trial and never shifts to the defendant. The defendant is never required to prove that he is innocent. You must not attach any significance to the fact that (name of defendant) did not testify. You must not draw any adverse inference against (him)(her) because (he)(she) did not take the witness stand. Do not consider, for any reason at all, the fact that (name of defendant)(a defendant) did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way. Comment See California Criminal Jury Instructions § 355 and § 5.21. For variations, see O’Malley et al., supra, § 15.14; First Circuit § 3.03; Sixth Circuit § 7.02A; Seventh Circuit § 3.01; and Ninth Circuit § 3.3. Under the Constitution, the defendant in a criminal case has the right to choose whether to testify and the right not to present any evidence. Neither the court nor the prosecutor may comment on the defendant’s election to remain silent at trial. See Griffin v. California, 380 U.S. 609, 614-15 (1965); Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991). But see United States v. Hasting, 461 U.S. 400, 510-11 (1983) (holding error harmless). If the defendant chooses not to testify, the defendant may also decide to request an instruction directing the jury to draw no negative inference from the defendant’s decision not to take the witness stand. The trial court must give such an instruction if requested. See Carter v. Kentucky, 450 U.S. 288, 299-303 (1981); Bruno v. United States, 308 U.S. 287, 293-94 (1939). Failure to give the requested instruction is
2016%20Chapter%204%20revisions.docx