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City of Colby v. Granston5/12/2000
at he had a constitutional right not to testify.
On appeal, defendant argues that the Fifth Amendment required the district judge to give his requested instruction to ensure the jury understood that he could not be compelled to speak and that his silence could not be used against him. Defendant relies on the United States Supreme Court's decisions in Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965), and Carter v. Kentucky, 450 U.S. 288, 67 L. Ed. 2d 241, 101 S. Ct. 1112 (1981), as well as the Tenth Circuit's interpretations of those decisions in U.S. v. De Hernandez, 745 F.2d 1305 (10th Cir. 1984), and U.S. v. Gomez-Olivas, 897 F.2d 500 (10th Cir. 1990).
In Griffin, the trial court told the jury that a defendant has a constitutional right not to testify, but the jury could draw adverse inferences from the defendant's failure to explain or deny by his testimony any evidence or facts against him. The Griffin court held that the "comment rule" violated the defendant's constitutional rights, because the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." 380 U.S. at 615.
In Carter, the trial judge refused to give a jury instruction explaining that defendant was not compelled to testify and that his failure to testify could not be used to infer guilt. The Kentucky Supreme Court had ruled that the requested instruction would have required the trial judge to "comment on" the defendant's failure to testify in violation of a statute prohibiting such comment. Carter, 450 U.S. at 295. The Carter court held: " he Fifth Amendment requires that a criminal trial judge must give a 'no-adverse-inference' jury instruction when requested by a defendant to do so." Carter, 450 U.S. at 300.
In De Hernandez, 745 F.2d 1305, the Tenth Circuit examined Griffin and Carter and expanded upon them, ruling that, when asked, a trial court must not only tell a jury that it can draw no adverse inference from a defendant's silence but that the defendant cannot be compelled to testify. "We . . . are of the view . . . that for an instruction on this point to be complete it should include the compulsion aspect." 745 F.2d at 1309.
The Tenth Circuit followed up on De Hernandez in Gomez-Olivas, 897 F.2d 500, in which it reaffirmed the dual requirements of De Hernandez and emphasized that the instruction should always be preceded by a defense request. In the absence of such a request, the panel said, a trial judge could torpedo a defendant's conscious tactical decision to avoid any mention of his or her silence in the face of accusation. See 897 F.2d at 502.
The First Circuit also has recognized the distinction between compulsion language and adverse inference language in jury instructions. In U.S. v. Brand, 80 F.3d 560 (1st Cir. 1996), the court was called upon to review an instruction that included compulsion language but excluded adverse inference language. It stated in pertinent part:
"Our question is whether instructing that the government has the burden of proof and that defendant does not have to testify or present evidence adequately communicates that no adverse inferences may be drawn from the fact that he does not testify. . . . A jury might well think that a defendant's right not to testify means merely that he cannot be called as a witness, leaving it to draw such conclusions from his silence as it felt warranted. An instruction not to consider his failure to testify precisely forbids drawing inferences. [Citation omitted.] Here, however, the court mentioned nothing beyond the defendant's right not to tes
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