This is another “dirty little secret” post about the inner workings of a criminal jury trial. Under the Fifth Amendment, the defendant has an absolute right not to testify at trial . . . But it’s only human to expect a person to explain things or deny guilt.
Precisely. So you’d think that New York would fix this by offering jury instructions that address the issue. And they do! Sort of. Here’s the instruction you get if your client doesn’t testify, via Greenfield:
Defendant Not Testifying
The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.
Huzzah! All is forgiven! Pull out the parade floats! Commence the Disco Dancing!
But what happens if your client does decide to testify? The jury gets this gem of an instruction:
Interest/Lack of Interest
You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.]
Right. So if your client testifies on their own behalf—like most juries expect them to—the court will issue a jury instruction that inherently impeaches the Defendant’s testimony by telling the jury that the Defendant’s an interested witness, thus undermining their credibility before the jury’s even left the jury box.
So every criminal Defendant in New York State is damned if they do, and damned if they don’t. Either your client exercises their Fifth Amendment rights, and the jury holds your client’s silence against them—or, your client does testify, and the judge issues a jury instruction that essentially tells them not to believe the Defendant’s testimony because he or she is “interested” in the outcome of their case.
Of course, this is all a bit non-sensical. No one is more interested in the outcome of their trial than an innocent person. But New York’s pattern jury instructions don’t account for this when a Defendant testifies. They don’t remind the jury that, just because a person is interested in the outcome of their case doesn’t mean they’re lying when they take the stand. Under the present jury instructions, every Defendant, innocent and guilty alike, has their credibility automatically undermined at the end of the case if they decide to testify.
Paul Kennedy, down in Texas, notes that other states have a different approach:
Down in the Lone Star State [the NY jury instruction] would be a comment from the bench about the weight of the evidence – and that’s a big no-no. Well, that is if the comment would be beneficial to the defense.
Sounds like you’re damned if you do and you’re damned if you don’t up there.
In the comments on Greenfield’s post, Jamison Koehler from the D.C. area notes that D.C.’s instruction is a bit more thorough on the front end. Here’s the D.C. instruction:
Every defendant in a criminal case has an absolute right not to testify. The defendant in this case has chosen to exercise this right. You must not hold this decision against him, and it would be improper for you to speculate as to the reason or reasons for his decision. You must not assume the defendant is guilty because he chose not to testify.
Sounds fabulous. Defendants in New York should be so lucky.
The fact that other states do it differently is an indication that there’s nothing inevitable about New York’s jury instructions. This is the sort of thing that law students interested in criminal justice should be getting fired up about. They should be signing petitions, drafting proposals, and getting involved to help make the system more fair to their future clients. Unfortunately, the hottest topic in most law schools right now is probably closer to whatever latest bit of gossip happens to’ve crossed the pages of AbovetheLaw. It’s not a sin. But it’s certainly not helping their future clients when their case goes to trial.
Update: Bk PD notes in the comments to Greenfield’s post that he’s tried to beat the “interested witness” charge in federal court using United States v. Brutus, 505 F.3d 80 (2d Cir. 2007), and United States v. Gaines, 457 F.3d 238 (2d Cir. 2006). Worth a look for practitioners, if you’re trying to litigate the issue on federal terms.