…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?

  • Jamie:
    I think we are nit-picking the instruction unnecessarily. I’ve never had a problem with it, especially after a thorough voir dire on the subject. Anyway, I’d be interested in what the other folks think.


  • In Missouri, the wording is more neutral. Our instruction reads:

    “Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.”

  • Maryland Criminal Pattern Jury Instruction 3:17

    The defendant has an absolute constitutional right not to testify. The fact that the defendant did not testify must not be held against the defendant. It must not be considered by you in any way or even discussed by you.

    The court may not give this instruction unless the defendant requests that this instruction be given.

    Jon Katz, Underdog, http://markskatz.com/justiceblog

  • The Florida standard jury instruction regarding a defendant not testifying reads as follows:

    The constitution requires the State to prove its accusations against the defendant. It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove [his] [her] innocence. It is up to the State to prove the defendant’s guilt by evidence.

    The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by [his] [her] decision. No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case.

  • I see your point with the wording of “failure,” but never really noticed until you pointed it out…

    I guess it could be worded better. What I have always been more concerned with is the viewpoints of the jurors regardless of how the instruction was given.

    I think this can only be worked out with a good voir dire. “Who would get up on the stand and tell their story if they were accused of something? What if your attorney told you it was a horrible idea, ESPECIALLY if you are innocent? What about being cross examined by someone who is TRAINED to make you look not credible?”

  • I agree with you Hunter, many jurors look to the Court for guidance in criminal cases, a better worded opening instruction would be more effective.

  • Charlie

    I’m actually a first year law student at the University of Cincinnati and came across your post after the conclusion of murder trial here in Cincinnati (the Ryan Widmer trial). He did not testify and I was wondering how much of an effect this has on jurors. I didn’t realize that jurors are instructed not to even discuss the matter, but has there been any studies on whether or not testifying on your own behalf skews the outcome? I know it would be difficult to determine since so many other factors come into play, but I was just curious if there was any work out there relating to this or if through your own experience you felt like jurors may have displayed this bias?