A few days ago, Mark Bennett was awaiting the charge to his jury when he considered the pattern instruction on the defendant’s “failure to testify.”  This started a conversation around the practical blawgosphere, with Jamie Spencer at  Austin Criminal Defense Lawyer and Anne Reed at  Deliberations jumping in [edit] as well as David Tarrell at In the Moment.  Despite my intention of getting into this conversation yesterday, I never made it.  But here I am, the caboose again.

Mark’s point, which really nails the issue, addresses the language to the jury about the defendant’s “failure to testify.”

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”?

Anne points out that “you’d like to see something in there about why the right is in the Constitution and why we hold it sacred, but of course defense lawyers are free to argue that.”  Indeed we would like to see the judge, rather than us, be the one to explain the significance of the 5th Amendment to the jury, but that’s not how it work. 

Jamie asked what the pattern jury instruction was in other jurisdictions.  In New York, the basic instruction is this:

The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.

For a variety of reasons, I despise this instruction.  On the other hand, I’ve never seen an instruction on the defendant not testifying that I didn’t think was destructive and unfair.  I similarly hate language about “inferences” to begin with, since no juror has a clue what its supposed to mean and it just flies past them, making judges feel like they’ve done their job while jurors just shrug it off as more legalese of no consequence.

Now that we’ve covered the nuts and bolts, let’s talk business.  Bennett is absolutely right that it is an outrage that the defendant’s decision not to testify is characterized as a “failure”.  Conceptually, the exercise of a constitutional right should be sacred, and thus never serve as a negative, whether expressly or implicitly.  But of course, it is. 

When it comes to a defendant not testifying, it is always a negative to a jury.  Absent the most peculiar circumstances where it is so clear that the defendant has nothing to add, juries want to hear the defendant say, if nothing else, that they didn’t do it.  More often, they want to hear the defendant’s “side” of the case.

What’s wrong with that?  That shifts the burden from the prosecution to the defense.  The jury then chooses which story they prefer; which story has better support; which is more probably.  Note the word “probable”, because it also implicates the burden of proof, reducing it from beyond a reasonable doubt to preponderance of the evidence.  When juries can pick between two competing versions of the facts, they will pick the one that seems more likely.  This isn’t constitutionally adequate, but that’s the way it happens. 

These concepts are all intertwined, and the all suffer from the same problem.  The criminal justice system has yet to figure out a way to instruct a jury on how to consider the evidence before them.  The “failure to testify” language is a disaster.  The burden of proof charge is incomprehensible.  Juries resort to what they do in real life and just make a decision.

But it is a truism that juries want defendants to take the stand.  The common wisdom (another phrase I hate and another “thing” that doesn’t really exist) is that an innocent defendant has nothing to hide and will want to testify about his innocence.  Of course, this ignores the realities that hide in the background.  There are a number of reasons why defendants shouldn’t and don’t testify.  Some are benign, others not so.

Defendants have prior convictions that will taint them to the jury.  Judges are supposed to only allow in prior convictions if they impact on the defendant’s credibility, and in New York a Sandoval hearing is held before the start of trial.  The purpose is to assure that a defendant is not prevented from testifying (also a constitutional right, I might add) because a prior conviction will be used to suggest that he has a propensity to commit crimes.  This is enormously powerful evidence before a jury, though it has nothing to do with whether the defendant committed the crime for which he is now on trial.

But judges usually allow the prosecution to question the defendant, at least to some extent, on prior convictions that have nothing to do with credibility.  The argument is that by committing a crime, any crime, the defendant shows that he puts his self-interest above that of society, and hence would lie to a jury to put his self-interest above his oath to tell the truth.  It’s a pretty good argument, but it’s just another way of proving propensity, which is not allowed, and works to render the defendant’s right to testify a farce.  Again, if the judge uses a word other than propensity, then it isn’t propensity.  The judge said so.

But what if your defendant is just kinda dumb, inarticulate, uneducated or plain old angry?  There are long list of traits that make for a bad witness, and you know that the prosecutor is going to pound on the defendant on cross to get him to explode.  What if the defendant is addicted, and will start to shake mid-way through testimony, and go into withdrawal?   There are many ways in which a defendant, having nothing to do with the crime, can commit suicide on the stand.  Many just make horrible witnesses, and we have to weigh whether we want the jury to just think he’s a bad guy or know it for sure after seeing him testify.

So the defendant can’t testify, but he can’t not testify either, since he’s going to get skewered either way by this “failure to testify” language, or even just pointing it out (think big neon sign over the defendant’s head) for the jury that the defendant could have testified but elected not to testify. 

There is no easy answer to these problems.  There is no hard answer either, as far as I’ve seen.  There are choices between the lesser of numerous evils.  None of them are in the defendant’s favor if you have a defendant who, for whatever reason, cannot take the stand.  What a surprise.