…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. Shawn? Robert? Stephen? Hunter? David? Doug? Ed? Steve?
How do they handle it in other states? What’s the jury instruction regarding exercising your right not to testify in New York? Maryland? Pennsylvania? Alabama? Missouri? Florida? Nevada? Any of you out of staters have better jury instructions for this?