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?