An Evidence-Based Modification to Criminal Jury Instructions on Right Not to Testify

On behalf of Prof. Eve Brensike Primus:

 

Dear Colleagues,

 

The Data for Defenders program at the University of Michigan Law School promotes creative and evidence-based advocacy in criminal courtrooms by providing defenders with access to motions and briefs that incorporate cutting-edge social science research into defense advocacy.  One of the motions that we drafted is a motion to modify the current pattern criminal jury instruction about a defendant's right to remain silent. Based on important social science research about assumptions that jurors are likely to make about the reasons why defendants choose not to testify, we are proposing to add language that provides jurors with innocent reasons why a defendant might choose not to testify so the instruction reads as follows:

Every defendant has the absolute right not to testify. A defendant may choose not to testify for any number of innocent reasons, including a fear of not coming across well due to poor self-presentation skills, nervousness about public speaking, or because their lawyer has advised them not to testify for reasons unrelated to their guilt or innocence in this case. When you decide the case, you must not consider the fact that the defendant did not testify. It must not affect your verdict in any way.

As currently written, most pattern instructions blindfold jurors, instructing them not to consider the fact that the defendant did not testify but providing no reasons why an innocent defendant might choose not to testify in court. When the jury has no reason to speculate or make assumptions about a subject area, blindfolding jurors to information on that subject can be an effective way to ensure that verdicts are based solely on the evidence presented at trial. But research shows that blindfolding is problematic when jurors have pre-existing biases, experiences, and beliefs relating to a topic, and jurors typically have pretrial experiences, attitudes, and beliefs about whether innocent defendants will (and should) testify. Most jurors believe that innocent people will testify in their own defense. If jurors are not given any reasons why an innocent defendant might not testify at trial, they will fall back on their preconceived assumption that people who are wrongfully accused will and should take the stand to deny the allegations and, if a defendant does not testify, it is probably because that person is guilty. In reality, there are many innocent reasons why a defendant might not testify including, poor self-presentation skills, fear of public speaking, or advice of legal counsel not to testify for a host of reasons independent of the client's guilt or innocence.

In other contexts, jurisdictions have crafted explanation-based pattern criminal jury instructions to redress improper background assumptions and biases. For example, a number of states have modified their pattern jury instructions on flight to include possible innocent reasons why a criminal suspect might flee from the police. If explanation-based instructions are helpful and necessary in that context, they are even more important with respect to the right to remain silent since jurors are not permitted to consider a defendant's choice not to testify at trial for any purpose. 

We are looking for criminal law, criminal procedure, and evidence professors  who are willing to sign on to a three-page letter that we are intending to send to criminal jury instruction committees around the country proposing this change.  If you are interested in signing on, you can find the text of the letter and an opportunity for you to add your name to it here.  If you have any questions, feel free to reach out  to me at [email protected] or at [email protected].  And please feel free to share this with others you think might be interested in signing on.

Thanks so much,

Eve Brensike Primus (she/her)

Yale Kamisar Collegiate Professor of Law

Director, MDefenders, Public Defender Training Institute, Data for Defenders

University of Michigan Law School

(734) 615-6889

www.law.umich.edu/FacultyBio/Pages/...

@PrimusEve

@primuseve.bsky.social