'Failure to Testify': A Better Instruction

Mark and Anne are blogging about Texas’ jury instruction regarding a defendant’s ‘taking the fifth’. Scott has weighed in as well – the New York instruction is about 5% better than ours, leaving it still severely flawed.

I decided to rewrite it myself:

While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.

How do you like them apples? I don’t think it will ever happen. Not that instruction, but I think it’s fair.

Anyone else want to take a shot at writing one that might pass muster?

Related Posts:

The Right To Not Testify Against Yourself (aka the 5th Amendment)

The Right Not To Testify Against Yourself (aka the 5th Amendment)

…supposedly can’t be held against you, right? It wouldn’t really be a ‘right’ if jurors were allowed to hold it against you. 

Houston criminal defense lawyer Mark Bennett points out though that the instruction read to the jury in the charge in Texas is:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. [From McClung’s Pattern Jury Charges, emphasis added.]

He then asks:

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?

You know the part in the TV show when the [defendant/defense lawyer/sometimes the prosecutor] cringes as some sort of terrible unknown piece of evidence comes out. It’s a silly made-for-TV moment that (almost) never happens.

But I bet I’m not the only criminal defense attorney that has to use some self control to avoid that cringe when the judge reads that portion of the charge.

There’s got to be a better way to say that. I don’t know that we can effect actual change, but I’ll go work on it. In the meantime, let’s hear suggestions from other Texas criminal defense lawyers out there. ShawnRobertStephenHunterDavidDougEdSteve?

How do they handle it in other states? What’s the jury instruction regarding exercising your right not to testify in New YorkMarylandPennsylvaniaAlabamaMissouriFloridaNevada? Any of you out of staters have better jury instructions for this?

With Prosecutorial Zeal

The Times had a piece Friday in the Politics Section about one of the leading candidates for president 2008: “Citing Statistics, Giuliani Misses Time and Time Again.” They give examples:

When a recent Republican debate turned to the question of fiscal responsibility, he boasted that “under me, spending went down by 7 percent.”

…Mr. Giuliani’s own memoir states that spending grew an average of 3.7 percent for most of his tenure; an aide said Mr. Giuliani had meant to say that he had proposed a 7 percent reduction in per capita spending during his time as mayor.

The article also quotes other Giuliani statements that are ‘incomplete, exaggerated or just plain wrong’ – and then goes on to show that they are all wrong. New York City is not the only city in America that has reduced crime every year since 1994.

I suppose you could make excuses for his ‘exaggeration’ of the pre-Mayor-Giuliani murder statistics, but when he overquotes by a minimum of 20-25%, I’m comfortable labeling that too as ‘just plain wrong’.

However, in politics as in life, the more insistent and certain you sound when you make things up, the more likely you are to be believed. Or, as the article put it:

On the campaign trail he often wields data, without notes, with prosecutorial zeal to hammer home his points.

“With prosecutorial zeal” jumped out at me.

Is this a fair comparison? We’re talking about the fervor with which a politician makes his case that he should be elected, not the other guy, details be damned.

Certainly that’s different than a prosecutor standing in front of a jury, full of righteous indignation and moral certitude that the defendant committed the crime. Isn’t it?

[I don’t engage in much political conversation on this blog. For more substantive blogging about this and related topics see: Life is Rich, Deborah Lipstadt, Kiko’s House.]

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Compensation for the Wrongly Convicted

From today’s New York Times piece “Putting a Price on a Wrongful Conviction”:

William Gregory and David Pope were both convicted of rape. Mr. Gregory served seven years in a Kentucky prison and Mr. Pope was imprisoned by Texas for 15 years before being released because of new DNA evidence.

Mr. Gregory, 59, now lives at the edge of a golf course, in a five-bedroom house he bought with part of the $4.6 million he received in legal settlements. Mr. Pope, 46, received $385,000 from the State of Texas.

To the extent that they got money, they are among the lucky ones. Of the more than 200 people released from prison since 1989 on the basis of new DNA evidence, 38 percent have received nothing for the years they spent behind bars.

I’m not sure if Gregory was able to sue or settle with other civil defendants besides the city of Louisville, Kentucky, but it looks like that case actually settled for $3.9 million.

But why the difference in the two settlement amounts? Pope was jailed more than twice as long as Gregory.

Apparently the city of Louisville felt Gregory could make a case that there had been bad faith or intentional misconduct in his prosecution, didn’t want to take the risk of trial and settled. Pope must not have been as ‘fortunate’.

The article asks “What are those years worth?” Ultimately, the question is unanswerable. And some politicians believe that gives the State an opening to deny compensation altogether:

“Once you open up those floodgates, where do you get all the money to pay for these falsely charged people?” asked state Rep. Thomas R. Caltagirone of Pennsylvania, co-chairman of that state’s House Judiciary Committee, where a compensation bill recently stalled. “How much money is it going to require? How much is a person worth?”

Good point. We can’t accurately say how much time in prison for a crime you didn’t commit is worth, and anything resembling a fair settlement will come out of the taxpayers’ pocket… so, the answer is: give them nothing.

Or perhaps, if we had a system where jurors knew that convicting the innocent could mean a few dollars out of their pocket, we wouldn’t have as big a problem in the first place.