SERIES 300 EVIDENCE
F 355 Defendant‘s Right Not to Testify
TABLE OF CONTENTS
F 355 Inst 1 Defendant Need Not “Argue“ A Failure Of Proof By The Prosecution
F 355 Inst 2 No Adverse Inference From Self-Representation By The Defendant
F 355 Inst 3 Jurors To Disregard Non-Testifying Defendant‘s Courtroom Appearance, Conduct And Demeanor
F 355 Inst 4 Jury May Not Consider Non-Testifying Defendant‘s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse In Capital Trial
F 355 Inst 5 Jury May Only Consider Testifying Defendant‘s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue
F 355 Inst 6 Defendant May Rely On State Of Evidence
F 355 NOTES
F 355 Note 1 Failure Of Defendant To Testify: No Sua Sponte Duty; Waiver For Strategic Purposes
F 355 Note 2 Failure Of Defendant To Testify: Whether Omission Of Instruction Can Be Harmless Error
F 355 Note 3 Failure Of Defendant To Testify: 5th Amendment Privilege Against Self-Incrimination Not Available As To Prosecution By A Foreign Nation
F 355 Note 4 Consideration Of Defendant‘s Medication, Culture, Etc. In Evaluating Demeanor At Trial
F 355 Note 5 Whether Instructions Against Drawing Inference From Defendant‘s Failure To Testify Should Be Given When Defendants Disagree
Return to Series 300 Table of Contents.
F 355 Inst 1 Defendant Need Not “Argue” A Failure Of Proof By The Prosecution
*Modify CC 355, sentence 2 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
He or she may rely on the state of the evidence and argue that require the People have failed to prove the charges beyond a reasonable doubt.
Alternative b:
A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against [him] [her]. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against [him] [her] on any essential element.
[Cf. CALJIC 2.60 and 2.61.]
Alternative c:
It is not up to the defendant to prove that [he] [she] is not guilty.
[Source: Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 22, p. 30; federal constitutional right to due process (14th Amendment).]
Points and Authorities
The CALCRIM instruction improperly implies that the defendant has the burden to “argue” that the case wasn’t proven. (See FORECITE F 100.1 Inst 1; see also CALJIC 2.60 and 2.61.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 355 Inst 2 No Adverse Inference From Self-Representation By The Defendant
*Add to CC 355:
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.
[CALJIC 2.60 Format.]
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 (1988) 46 C3d 833, 876-77.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.7 [Self Representation]
FORECITE CG 6.11 [Fairness: Generally]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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.)
CALJIC NOTE: See FORECITE F 2.60a.
F 355 Inst 3 Jurors To Disregard Non-Testifying Defendant’s Courtroom Appearance, Conduct And Demeanor
*Add to CC 355:
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 (1984) 160 CA3d 82, 91.) 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 (1978) 436 US 478, 485 [56 LEd2d 468; 98 SCt 1930]; see also People v. Boyette (2002) 29 C4th 381, 434 [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 (1997) 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 (1988) 45 C3d 147 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 (1998) 67 CA4th 647 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 (1983) 34 C3d 441, 473-74 [cases are not authority for matters not considered].)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.1 [Privilege Against Self-incrimination: Reliance On Silence]
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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.
CALJIC NOTE: See FORECITE F 2.60b.
F 355 Inst 4 Jury May Not Consider Non-Testifying Defendant’s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse In Capital Trial
See FORECITE F 104.1 Inst 8.
F 355 Inst 5 Jury May Only Consider Testifying Defendant’s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue
See FORECITE F 104.1 Inst 9.
CALJIC NOTE: See FORECITE F 2.60d.
F 355 Inst 6 Defendant May Rely On State Of Evidence
*Add the following to CC 355:
It is not up to the defendant to prove that [he] [she] is not guilty.
Points and Authorities
Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 22, p. 30; federal constitutional right to due process (14th Amendment).
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.1 [Privilege Against Self-incrimination: Reliance On Silence]
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES
See FORECITE BIBLIO 2.60.
CALJIC NOTE: See FORECITE F 2.61a.
F 355 NOTES
F 355 Note 1 Failure Of Defendant To Testify: No Sua Sponte Duty; Waiver For Strategic Purposes
Carter v. Kentucky (1981) 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 (1970) 10 CA3d 96, 104-06 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 (1996) 674 A2d 217; compare People v. Towey (2001) 92 CA4th 880, 884 [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 (1997) 15 C4th 619, 687 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.
CALJIC NOTE: See FORECITE F 2.60 n1.
F 355 Note 2 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 (1998) 62 CA4th 186, 198 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.)
CALJIC NOTE: See FORECITE F 2.60 n2.
F 355 Note 3 Failure Of Defendant To Testify: 5th Amendment Privilege Against Self-Incrimination Not Available As To Prosecution By A Foreign Nation
U.S. v. Balsys (1998) 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.
CALJIC NOTE: See FORECITE F 2.60 n3.
F 355 Note 4 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 570.)
CALJIC NOTE: See FORECITE F 2.60 n4.
F 355 Note 5 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 (1981) 450 US 288, 305 [67 LEd2d 241; 101 SCt 1112]; Lakeside v. Oregon (1978) 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/Lakeside instruction 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 co-defendant’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 co-defendant’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 co-defendant’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 co-defendant 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 (1989) 47 C3d 1047, 1070-1076; People v. Jackson (1996) 13 C4th 1164 [problem addressed in Bruton and Aranda may also be solved by the use of separate juries for co-defendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence].)
CALJIC NOTE: See FORECITE F 2.60 n7.
