F 2.60

F 2.60 n1 Failure Of Defendant To Testify: No Sua Sponte Duty; Waiver For Strategic Purposes.

Carter v. Kentucky (81) 450 US 288 [67 LEd2d 241; 101 SCt 1112], on remand 620 SW2d 320, held that the federal Constitution requires that a trial judge must, if requested by the defendant, instruct the jury not to draw an adverse inference from the defendant’s failure to take the stand. It follows that the defendant may make a strategic choice not to instruct the jury regarding his or her failure to testify per CJ 2.60 and CJ 2.61. This area of the law has spawned confusion regarding the obligation of the trial court to give or not give such instructions sua sponte or upon request and/or over objection. For a review of conflicting decisions on this issue, see People v. Cooper (70) 10 CA3d 96, 104-06 [88 CR 919] and CJ use note to CJ 2.60. The Pennsylvania Supreme Court dealt with this problem by requiring that the no-adverse-inference-instruction be given in every case absent an express on-the-record colloquy by the defendant waiving the instruction. (See Commonwealth v. Thompson (96) 674 A2d 217; compare People v. Towey (2001) 92 CA4th 880, 884 [112 CR2d 326] [court not required to obtain defendant’s personal consent to waiver of jury instructions pertaining to defendant’s failure to testify when instructions cannot be characterized as fundamental right].)

People v. Holt (97) 15 C4th 619, 687 [63 CR2d 782] held that because CJ 2.60 may be waived for sound tactical reasons it need not be given sua sponte. Moreover, even if the instruction has been given at the guilt phase at a capital trial, it need not be repeated sua sponte at the penalty phase.

F 2.60 n1.5 No Sua Sponte Duty To Give CJ 2.61 Even If CJ 2.60 Is Given.

See People v. Lopez (2005) 129 CA4th 1508, 1535-36.

F 2.60 n2 Failure Of Defendant To Testify: Whether Omission Of Instruction Can Be Harmless Error.

U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, reversed for failure to caution the jury regarding the failure of the defendant to testify. (648 F2d at 631.) The court did not discuss whether the error could possibly be treated as harmless, noting that the government apparently conceded that the failure to give such an instruction is reversible error. (Ibid.)

People v. Evans (98) 62 CA4th 186, 198 [72 CR2d 543] concluded that the error is subject to harmless error analysis. In so doing, the court noted that “if the principal contested issue is identity, the jury may very likely draw inferences adverse to the defendant from his failure to testify as to his whereabouts during the relevant time period.” (Evans, 62 CA4th at 198.)

F 2.60 n3 Failure Of Defendant To Testify: 5th Amendment Privilege Against Self-Incrimination Not Available As To Prosecution By A Foreign Nation.

U.S. v. Balsys (98) 524 US 666 [141 LEd2d 575; 118 SCt 2218] held that the privilege against self-incrimination encompassed in the 5th Amendment may not be invoked solely out of fear of foreign prosecution.

F 2.60 n4 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial.

STRATEGY NOTE: Exit interviews with jurors suggest that there is a very real possibility the jury will notice and rely on the defendant’s appearance, demeanor and conduct in the courtroom even if he or she doesn’t testify. Hence, counsel should give consideration as to how to advise the client in this regard. Additionally, extraneous factors which could impact the defendant’s appearance (e.g., medications, cultural characteristics, etc.) should be investigated and considered, both in advising the client and in formulating cautionary instruction requests. (See also FORECITE F 4.40 n4.)

F 2.60 n5 Self-Representation On Appeal.

“Neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self-representation on direct appeal from a criminal conviction.” (Martinez v. Court of Appeal (2000) 528 US 152 [145 LEd2d 597; 120 SCt 684].)

F 2.60 n6 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial.

(See Bell v. Hill (9th Cir. 1999) 190 F3d 1089; see also Menefield v. Borg (9th Cir. 1989) 881 F2d 696, 701 [accused who represents himself at trial but asks for an attorney to represent him at a motion for a new trial is entitled to have one appointed].)

F 2.60 n7 Whether Instructions Against Drawing Inference From Defendant’s Failure To Testify Should Be Given When Defendants Disagree.

PRACTICE NOTE: In single-defendant cases, an instruction cautioning the jury not to draw an adverse inference from the defendant’s failure to testify is required upon request. (See Carter v. Kentucky (81) 450 US 288, 305 [67 LEd2d 241; 101 SCt 1112]; Lakeside v. Oregon (78) 435 US 333, 340-41 [55 LEd2d 319; 98 SCt 1091]; 75 Am.Jur.2d Trial, §§ 577-79. However, in multi-defendant cases where the co-defendants disagree about whether a Carter/Lakesideinstruction should be given, there is an inherent conflict which the trial judge must resolve. Several cases have held that the conflict should be resolved in favor of giving the instruction because Carter requires that the instruction be given. (See e.g., Melgoza v. Peters (7th Cir. 1991) 932 F2d 676, 677 [finding no error in trial court’s decision to give “no-inference” instruction upon codefendant’s request and defendant’s objection]; People v. Brooks (IL 1984) 463 NE2d 1326, 1331 [124 Ill.App.3d 222] [finding that, in case of codefendant’s conflicting requests, there is “no constitutional infirmity so long as the trial court gives the tendered instruction”]; Lucas v. State (IN 1986) 499 NE2d 1090, 1093 [finding that a defendant’s right to an instruction must prevail over the codefendant’s state constitutional right to decide whether or not he wants the instruction]; Hardaway v. State (MD 1989) 562 A2d 1234, 1238 [317 Md. 160] [determining that the constitutional right of a defendant requesting the instruction must take precedence over the wishes of a codefendant objecting to the instruction]; see State v. Griffin (IA 1998) 576 NW2d 594 [same].)

However, this result undermines the fundamental rule that the defendant should not be required to accede to cautionary instructions which will highlight a prejudicial matter. (See generally Annotation, “Propriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify,” 18 ALR3d 1335.) In fact, many cases have recognized that a violation of this rule, in the context of a Carter instruction, is prejudicial error. Hence, forcing an unwanted Carter/Lakeside instruction upon a defendant implicates the right against self-incrimination as well as the rights to due process, fair trial by jury and representation of counsel under the 5th, 6th and 14th Amendments to the federal constitution.

PRETRIAL MOTION NOTE: The very existence of such a conflict between co-defendants would be a logical factor militating in favor of severance and separate trials or, at least, separate juries. (See People v. Harris (89) 47 C3d 1047, 1070-1076 [255 CR 352]; People v. Jackson (96) 13 C4th 1164 [56 CR2d 49] [problem addressed in Bruton and Aranda may also be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence].)

F 2.60 n8 Self-Representation: Waiver Must Be Obtained At Time Defendant Is Bound Over For Trial In Superior Court.

(See People v. Crayton (2000) 28 CA4th 346, 350 [121 CR2d 580] [failure to obtain timely waiver of right to counsel is subject to harmless error review]; see also U.S. v. Hayes (9th Cir. 2000) 231 F3d 1132, 1137-40 [when defendant waives his right to counsel, court is not required to impart technical legal knowledge, but must advise of inherent pitfalls of self-representation]; but see People v. Sohrab (97) 59 CA4th 89, 99 [68 CR2d 749] [error is reversible per se].)

F 2.60 n9 Prosecutorial Misconduct: Improper Comment On Willingness Of Witness To Testify As Opposed To Defendant.

People v. Guzman (2000) 80 CA4th 1282, 1290 [96 CR2d 87] held that a prosecutor’s repeated references to a witness’ willingness to testify impliedly compared the witness to the defendant, who did not testify, and constituted error under Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229]. The Court pointed out the distinction between comments directed at the defense’s failure to present evidence, and at the defendant’s silence, and admitted that “prosecutors must walk a fine line when treading in this area.”

RESEARCH NOTE: Violation of federal constitutional rule (Griffin v California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093, supp sec. 10.

F 2.60 n10 Self-Representation: Right To Advisory Counsel In Non-Capital Cases.

A trial court is not required to appoint advisory counsel to assist a non-capital defendant who is self-representing, even when that defendant is non-English speaking and/or unsophisticated and the charge is murder. (People v. Garcia (2000) 78 CA4th 1422, 1428 [93 CR2d 796] [declining to extend People v. Bigelow (84) 37 C3d 731 [209 CR 328] to non-capital cases].)

F 2.60 n11 Self Representation On Appeal: Denial Of Access To Law Library Not Sufficient Basis For Denial.

“An incarcerated criminal defendant who chooses to represent himself has a constitutional right to access to ‘law books . . . or other tools’ to assist him in preparing a defense. [Citation.] If the state had unconstitutionally denied [the defendant] such access, that denial would have been an independent basis for relief… So long as the state did not restrict or deny access unconstitutionally, it would have been up to [the defendant] to decide whether, under the circumstances, he wished to represent himself.” (Bribiesca v. Galaza (9th Cir. 2000) 215 F3d 1015, 1020.)

F 2.60 n12 Self-Representation: Advising Accused As To Privilege Against Self-Incrimination.

The Killpatrick-Kramer rule, which directs a trial court to warn a pro per defendant of the privilege against self-incrimination before he or she takes the witness stand, was disapproved in People v. Barnum (2003) 29 C4th 1210, 1214 [131 CR2d 499].) Under Barnum, the judge may, but is not required to, separately warn pro per defendants of their Fifth Amendment privilege not to testify even if they are called to testify by the prosecutor.

F 2.60 n13 Self-Representation: Failure To Allow Defendant To Proceed Pro Per As Reversible Error.

(See People v. Carlisle (2001) 86 CA4th 1382 [103 CR2d 919] [when defendant unequivocally requests to represent himself, court’s failure to allow him to proceed pro per is reversible error]; see also People v. Dent (2003) 30 C4th 213 [132 CR2d 527] [trial court erroneously denied self-representation request made by defendant in death penalty case]; People v. Williams DEPUBLISHED (2001) 92 CA4th 239 [111 CR2d 732].)

(See also FORECITE F 2.60 n16.)

F 2.60 n14 Self-Representation: Mental Competency Of Defendant.

A defendant who is not familiar with the law and legal procedures, but is mentally competent and is fully informed of the right to counsel has right to self-representation. (People v. Silfa (2001) 88 CA4th 1311 [106 CR2d 761]; see also Godinez v. Moran (93) 509 US 389 [125 LEd2d 321; 113 SCt 2680] [test for competency to self-represent is same as competency to stand trial].)

To be competent to represent herself, a defendant must simply have a “rational understanding” of the proceedings. (See Godinez v. Moran (93) 509 US 389, 397-98 [125 LEd2d 321; 113 SCt 2680].) Hence, it is error to find that a defendant is not competent to represent himself or herself simply because he or she will be unable to present his or her defense in an informed, reasonable, or intelligent manner. (Van Lynn v. Farmon (9th Cir. 2003) 347 F3d 735.)

F 2.60 n15 Self-Representation: Waiver Must Be Knowing And Voluntary.

See People v. Lawley (2002) 27 C4th 102, 139 [115 CR2d 614] [as well as determining that a defendant who seeks to waive counsel is competent, the trial court, by making the defendant aware of the risks of self-representation, must satisfy itself that the waiver is knowing and voluntary]; see also Godinez v. Moran (93) 509 US 389, 400 [125 LEd2d 321; 113 SCt 2680]; People v. Bloom (89) 48 C3d 1194, 1224 [259 CR 669]; but see Iowa v. Tovar (2004) 541 US 77 [124 SCt 1379; 158 LEd2d 209] [trial courts are not required to advise defendants representing themselves that waiving counsel entails a risk that a defense will be overlooked, or that they lose an independent opinion whether it is wise to plead guilty].

F 2.60 n16 Self-Representation: Applicability To Penalty Phase Of Death Penalty Trial.

“[T]he state’s interest in insuring a reliable penalty determination may not be urged as a basis for denying a capital defendant his fundamental right to control his defense by representing himself at all stages of the trial.” [Citations and internal quotation marks omitted.] (People v. Koontz (2002) 27 C4th 1041, 1074 [119 CR2d 859]; see also People v. Boyette (2002) 29 C4th 381 [127 CR2d 544].) Other jurisdictions considering the question have answered it similarly. (E.g., U.S. v. Davis (5th Cir. 2002) 285 F3d 378, 384 [defendant’s Farretta rights under the 6th Amendment trump any inherent judicial powers and cannot be impinged because society or a judge “may have a difference of opinion with the accused as to what type of evidence, if any, should be presented in a penalty trial”]; People v. Coleman (IL 1995) 660 NE2d 919, 937-38; Bridges v. State (NV 2000) 6 P3d 1000, 1012; State v. Reed (SC 1998) 503 SE2d 747, 750.)

F 2.60 n17 Self-Representation: Termination Or Revocation For Out-Of-Court Conduct.

ALERT: People v. Carson (2005) 35 C4th 1 held that the defendant’s out-of-court conduct provides good cause for termination of a self-representation order.

There is a dearth of law in the area of terminating a defendant’s right of self-representation for out-of-court conduct. Most of the law dealing with limitations on the right to self-representation has dealt with the initial granting of or denial of the right (see, e.g., People v. Rudd (98) 63 CA4th 620 and the cases discussed therein) or the termination of the right to self-representation because of conduct in the courtroom that was either disruptive (Vanisi v. State (Nev. Sup. Ct. 2001) 22 P3d 1164, 1171 [defendant interrupted others, repeated himself over and over and stood up and rocked back and forth and at times talked out loud to himself so that it was impossible to know if he was addressing the court or talking to himself]; United States v. Brown (7th Cir. 1986) 791 F2d 577 [defendant refused to proceed, was held in contempt and right to self-representation revoked]) or obstructive. (United States v. Brock (7th Cir. 1998) 159 F3d 1077 [defendant refused to proceed if he did not get his way]; State v. Whalen (97) 192 Ariz. 103, 961 P2d 1051 [defendants refused to cross bar because court had a flag with gold fringe and crossing the bar would have been consenting to the court’s jurisdiction; additionally defendants insisted they had the right to leave the courtroom whenever they chose].)

In the federal courts there are few cases dealing with the termination of the defendant’s right of self-representation because of out-of-court activities. In United States v. Flewitt (9th Cir. 1989) 874 F2d 669, the trial court summarily terminated the defendants’ self-representation because, in the court’s opinion, the defendants would not prepare for trial and this was an indication they were incapable of representing themselves. In reversing the conviction the appellate court stated, “…[A] defendant’s Sixth Amendment right to self-representation — so vigorously upheld by the Supreme Court in Faretta — may [not] be extinguished, as it was in this case, due to the defendant’s lack of preparation prior to trial. [Faretta] expressly denies …that the right of self-representation is `a license not to comply with relevant rules of procedural and substantive law.’ (Faretta, 422 US at 834 fn. 46.) There is no indication that a failure to comply with such rules can result in a revocation of pro se status. Instead, [footnote 46] indicates the Court’s meaning to be that a defendant cannot claim `ineffective assistance of counsel’ flowing from his failure to follow the rules of procedure or from his misinterpretation of the substantive law. If he chooses to defend himself, he must be content with the quality of that defense.” (United States v. Flewitt, supra, at p. 674.)

In California, some cases have dealt with terminating a defendant’s right to self-representation for conduct which is “serious or obstructionist” as set forth in Faretta. (See e.g., People v. Clark (92) 3 C4th 41, 115-116; People v. Davis (87) 189 CA3d 1177, 1187.) However, the cases involving out-of-court conduct by the defendant have upheld the right to self-representation.

For example, in Ferrel v. Superior Court (78) 20 C3d 888, the defendant was allowed to represent himself, but while the trial was pending, he abused several jail rules such as using his legal runner as a conduit to take defendant’s illegal gambling winnings out of the county jail and damaging a telephone. The trial judge rescinded the defendant’s right to self representation but the court of appeal reinstated it stating: “Since it is manifest that the right to present a defense must necessarily be exercised in court, we conclude that an accused should only be deprived of that right when he engages in disruptive in-court conduct which is inconsistent with its proper exercise.” (Ferrel, supra, 20 C3d at p. 891.)

In People v. Poplawski (94) 25 CA4th 881 when the defendant, whose primary language was Polish, expressed dissatisfaction with appointed counsel, the court granted the defendant’s motion for self-representation. However, a second judge revoked the defendant’s right to self-representation and appointed counsel based upon: “(1) `the language problem it had experienced with defendant’; (2) defendant’s lack of familiarity with `legal language,’ as demonstrated by his ignorance of the meaning of the word `motion’; and (3) the court’s doubts as to whether defendant had a sufficient understanding of the proceedings.” (People v. Poplawski, supra, 25 CA4th at p. 891.) In reversing the convictions, the court of appeal stated that even if the factors were relevant, the record did not support judge’s findings.

(See also FORECITE F 2.60 n13.)

F 2.60 n18 Courtroom Security: Self-Representation — Exclusion Of Pro Se Defendant From Sidebar Conferences.

(See FORECITE F 1.04 n15.)

F 2.60 n19 Forfeiture Of Right To Counsel By Misconduct: Due Process Requires Warning.

(See King v. Superior Court (2003) 107 CA4th 929 [Due process requires that the accused receive warning that continued misconduct may result in the termination of representation, unless the misconduct is of the most serious nature].)

F 2.60 n20 Self-Representation: Self-Representation At Trial Does Not Preclude Representation By Counsel At Sentencing.

(See Robinson v. Ignacio (9th Cir. 2004) 360 F3d 1044 [under clearly established federal law, state trial court’s denial of request for counsel at sentencing by defendant who had represented himself during trial violated Sixth Amendment].)

F 2.60a

No Adverse Inference From Self-Representation By The Defendant

*Add to CJ 2.60:

A defendant in a criminal trial has a constitutional right to represent [himself] [herself]. You must not draw any inference from the fact that a defendant represented [himself] [herself] during any part of the trial. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.

Points and Authorities

Upon request, the defendant is entitled to have the jury instructed to draw no inference adverse to the defendant from the defendant’s exercise of the right of self-representation. (People v. Crandell (88) 46 C3d 833, 876-77 [251 CR 227].) The above instruction is patterned after CJ 2.60.

Practice Note: This instruction may be appropriate when the defendant is acting as co-counsel as well as when the defendant is acting alone. However, when the defendant is acting alone it may be appropriate for the judge to inquire as to whether the defendant wishes to request this instruction. This instruction must be requested because any advantage to the defendant in giving such an instruction is “debatable” because it may have the effect of highlighting the very fact that it is intended to minimize. (Crandell, 46 C3d at 877.)

F 2.60b

Jurors To Disregard Non-Testifying Defendant’s Courtroom

Appearance, Conduct And Demeanor

*Re: CJ 2.60:

You are admonished to disregard the defendant’s appearance, demeanor and conduct in the courtroom. You must not consider it for any purpose.

Points and Authorities

There are several reasons why the in-court demeanor or conduct of a non-testifying defendant should not be considered by a jury.

First, such demeanor or conduct is not “relevant evidence” because it does not bear upon any material issue at trial. (People v. Garcia (84) 160 CA3d 82, 91 [206 CR 468].) Nor can it be considered by the jury as demeanor evidence because such evidence is only relevant as it bears on the credibility of a witness who has testified. (Ibid; EC 780.)

Second, the defendant’s demeanor or conduct is not evidence which has been adduced at trial. The due process clause of the federal constitution (5th and 14th Amendments) “encompasses the right not to be convicted except on the basis of evidence adduced at trial.” (U.S. v. Schuler (9th Cir. 1997) 813 F2d 978, 981.) “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds … not adduced as proof at trial.” (Taylor v. Kentucky (78) 436 US 478, 485 [56 LEd2d 468; 98 SCt 1930]; see also People v. Boyette (2002) 29 C4th 381, 434 [127 CR2d 544] [prosecutor committed misconduct insofar as she suggested in her argument that the jury should find appellant unreliable based on his courtroom demeanor]; U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210; Lee v. State (97) 964 SW2d 3, 14, 17 [“the State must confine its jury argument concerning defendant’s guilt to statements based upon properly admitted evidence”].)

Third, jury reliance on the defendant’s demeanor or conduct impugns the defendant’s right not to testify (5th and 14th Amendments) and right to trial by jury, right to counsel, including the right to assist his counsel in his or her own defense (6th and 14th Amendments). (U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210 [if defendant elects not to testify, the fact of his presence and non-testimonial behavior in the courtroom could not be taken as evidence of his guilt].)

People v. Heishman (88) 45 C3d 147 [246 CR 673] considered only the relevance issue in concluding that the defendant’s behavior was a proper subject for consideration by the jury. (Heishman, 45 C3d at 197 [relevant to credibility where defendant put character in issue]; see also People v. Albritton (98) 67 CA4th 647 [79 CR2d 169] UNPUBLISHED PORTION [relied on Heishman to allow DA to comment on demeanor of non-testifying defendant].) Hence, it is not authority as to the other federal constitutional issues discussed above. (See People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)

NOTES

This instruction would seem to be particularly important in the penalty phase of a capital case where factors such as the defendant’s demeanor — e.g., whether or not he looks remorseful — could easily be relied upon by the jury in determining whether or not to impose a sentence of death. Post-verdict juror interviews establish that the jurors may heavily rely upon the defendant’s “unremorseful” demeanor to discredit the defense or impose death even though the defendant never took the stand.