“A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” — Standard California Jury Instruction on the right to remain silent, Jury Instruction #355.
The right to remain silent and not testify in a criminal prosecution is guaranteed to defendants by the United States and California Constitutions and the International Covenant on Civil and Political Rights. You’d think that an average juror with at least a high school education would understand that they’re not supposed to hold against a defendant their failure to testify or to even consider their failure to testify in determining whether the prosecution has proved its case against the defendant. It’s not up to the defendant to prove his/her innocence.
Recently I had to track down jurors after a conviction on felony charges and interview them. This is what one juror stated in a sworn declaration she agreed to sign. Thankfully, she was truthful: “”…we also wondered why the defendant didn’t testify on his own behalf. It was remarkable that he didn’t say anything in his own behalf.”
I’ve got my fingers crossed now in hopes the defendant gets a new trial.
