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)

  • Wouldn’t they crush you on the “when the State fails to prove any element of the offense beyond a reasonable doubt” clause? I think you can always ask for the moon, but counter with a pared down version:

    While a defendant may choose to testify if they so wish, it is completely unnecessary for a defendant to testify and they may choose not to do so. This choice cannot be considered as evidence of the defendant’s guilt. The State’s case cannot be given any more weight simply because the defendant has chosen not to testify.

  • Elvez:

    There’s an aproximately 0.0000% chance my proposed instruction would ever actually be used.

    I was just trying to write one that was as unfair to the State as the one often used now is to the defendant. I don’t think I succeeded – I think my instruction is more fair to the state than the current one is to the defense.

    So, um, yes, I was asking for the moon, but not expecting it 🙂

  • That would be great, but if the defendant starts spinning the instructions, we might find the state getting a line like:

    “If the defendant could have helped his case testifying, he would have.”

    Ha. Ha.