2.2-4 Defendant's Option to Testify
Revised to December 1, 2007
The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. (He/she) is under no obligation to testify. (He/she) has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant's choice not to testify.
General Statutes § 54-84 (b) provides that "[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." Section 54-84 (b) reversed prior Connecticut case law that held that a defendant who did not testify at trial was not entitled to have the jury instructed that his or her choice not to testify should not be considered against him or her. See State v. Nemeth, 182 Conn. 403, 409-10 (1980); State v. Miller, 34 Conn. App. 250, 255-61, cert. denied, 230 Conn. 902 (1994). The statute imposes a definite duty upon the court, without a request from the defendant, to instruct the jury that it must not draw any unfavorable inferences from the defendant's constitutional privilege of silence. State v. Hicks, 97 Conn. App. 266, 271, cert. denied, 280 Conn. 930 (2006). The omission of a "no adverse inference" instruction is plain error and due to its constitutional magnitude can never be subject to harmless error analysis. State v. Suplicki, 33 Conn. App. 126, 130 (1993), cert. denied, 229 Conn. 920 (1994); State v. Cruz, 59 Conn. App. 426, 428-30, cert. denied, 254 Conn. 947 (2000).
Although the instruction need not recite the statutory language verbatim, it must accurately convey the substantive meaning. See State v. Yurch, 229 Conn. 516, 322 (1994), cert. denied, 513 U.S. 965, 115 S.Ct. 430, 130 L.Ed.2d 343 (1994) (improper to use the word "unreasonable" instead of "unfavorable"); State v. Vega, 36 Conn. App. 41, 48 (1994) (the use of "unfair" rather than "unfavorable" was reversible error).
In State v. Casanova, 255 Conn. 581, 600 (2001), the Supreme Court held that it was not improper to use the "arguably negative" statutory phrase "failure to testify," because "the charge as a whole . . . was neutral in substance," in that it contained the neutral phrases "option to testify," "no obligation to testify," and "constitutional right not to testify." It also held that the trial court was not required by § 54-84 (b) to use the defendant's requested language. While this case establishes that a reference to a defendant's "failure" to testify does not constitute a constitutional or statutory violation, the cautious approach is to use consistently neutral language.
A defendant does not have "a
constitutional right to be canvassed personally" as to his or her waiver of this
instruction; counsel for the defendant, acting on the defendant's behalf, may
request that the court omit the instruction from its charge. State v.
Stewart, 64 Conn. App. 340, 351, cert. denied, 258 Conn. 909 (2001).
"Although the right not to testify is personal to the accused, the decision as
to whether a court should include an instruction, pursuant to § 54-84 (b),
regarding an accused's decision not to testify is a matter of trial strategy."