Monday, December 10, 2007

Defendant's "Failure" to Testify?

Mark Bennett, a student of Terry McCarthy, who knows the importance of choosing language that not only doesn't demean your client but which describes him or her in the best possible light, spots something subtle but potentially important in Texas' Criminal Jury Instructions:

"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..."

Nebraska's instruction isn't quite so bad, but is entitled, "DEFENDANT'S FAILURE TO TESTIFY." (NJI2D Crim. 9.4) It doesn't mention the word "failure" in the instruction, but the judge reads the title before getting to the instruction itself:

"The defendant has an absolute right not to testify. The fact that the defendant did not testify must not be considered by you as an admission of guilt and must not influence your erdict in any way."

There is also no mention of the source of the privilege, but the comment says "the committee left mention of the Constitution to argument of counsel." In other words, it looks like defense attorneys need to start arguing for (1) a mention of this as being a "Constitutional" right and, (2) objecting to it being described as a "failure."

In fact, my former boss, Tom Riley, is arguing a death penalty case right now and I'm guessing that the defendant won't testify, meaning that the jury will undoubtedly hear about his "failure" when the judge instructs the jury. I'm sure my boss has more than this on his mind right now, but, in a case like this, even a subtle word choice might be the difference between life and death.

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