Failure no more

Mark Bennett’s post on the use of the phrase “failure to testify” in jury instructions, which I mentioned in this week’s Jumpstart, has spawned a vibrant discussion in the blawgosphere. Mark initially asked this question:

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”?

Jamie at Austin Criminal Defense followed up with his own post, Anne got involved and the Great Greenfield has his own comments on this and why defendants should or should not testify. Universally, the defense blawgers agree that this makes them cringe; that the word “failure” connotes something negative (much like the use of the word “victim“).

So, Jamie asks, what is an instruction that will pass muster? He offers:

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.

Before I offer my own, I decided to take a look at CT’s jury instruction on the defendant’s “failure” to testify. It states:

The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.

It seems really good until that last sentence. So have there been challenges to this language? Yep, at least in CT. In State v. Casanova, 255 Conn. 581, 597-601 (2001), the Supreme Court held that ”the charge as a whole . . . was neutral in substance and appropriately guided the jury to a proper verdict,” despite the defendant’s argument that the language ”failure to testify” had a negative connotation. Id., 600.

Understanding that in CT “failure to testify” does not mean anything negative, I offer the following jury instruction in its place:

“Earlier, we talked about the burden of proof. The State bears the burden of proving – beyond a reasonable doubt – that the defendant is guilty of the charges. The defendant has the right to present evidence to rebut those charges. The defendant may choose to do so in several ways: the defendant can present testimony of other witnesses or testify himself. The defendant has an absolute right not to testify. Whether the defendant testifies or not, it does not change the State’s burden of proof one bit. The State still has to prove beyond a reasonable doubt that the defendant is guilty. If the defendant chooses to testify, you will weigh his/her testimony as you would any other witness and determine if it is credible or not. If the defendant chooses not to testify, you will simply consider the evidence presented and determine whether the State has proven guilty beyond a reasonable doubt based on that evidence alone.”

What do you guys think?

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