Failure to Testify

 Posted on December 10, 2007 in Uncategorized

From McClung's Texas Pattern Jury Charges:

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 in this cause, nor will you refer to or discuss any matter not before you in evidence.

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify - the exercise of one of the rights that we, as defenders, hold sacred - as a "failure"?

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