Silenced by Instruction

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 70 No. 2

Silenced by Instruction

Vida B. Johnson

SILENCED BY INSTRUCTION

Vida B. Johnson^*

Abstract

Criminal law and procedure tell us a criminal defendant is presumed innocent. Jurors in criminal trials receive a specific instruction on the presumption of innocence prior to beginning deliberations in trial. But the instructions given to the jury in a number of jurisdictions when a defendant testifies is a significant legal obstacle standing in the way of the presumption of innocence. Jurors in a few states and federal courts all over the country receive instructions that a defendant's testimony should be viewed with caution because of his interest in the outcome of the case. In other states the general instructions about assessing credibility of all witnesses asks courts to consider the witnesses "interest in the outcome of the case." Since no one has a clearer or more apparent interest in the outcome of the case than the defendant, any type of instructions that highlights an interest in the outcome of the case undermines the presumption of the innocence is a significant infringement on his constitutional right. Despite the presumption of innocence, jurors are told when a person accused of a crime proclaims his innocence in the courtroom, that testimony should be viewed with skepticism. This Article shows how these types of instructions work to silence defendants. The Article proposes a new jury instruction that should be given whenever an accused person testifies.

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Introduction.............................................................................................311

I. Situating the Issue in the Criminal Legal Reform Movement.......................................................................................313
II. Presumption of Innocence...........................................................318
III. Jury Instructions..........................................................................320

A. The Defendant's Testimony Instruction.................................... 324
B. General Credibility Instructions............................................... 330
C. Police Officer Witness .............................................................. 331

IV. Silencing Defendants...................................................................336
V. Compounding the Problem...........................................................341
VI. Solutions: New Instructions......................................................343

CONCLUSION ............................................................................................344

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Introduction

Much of criminal law and procedure is ostensibly arranged around the ideal that a criminal defendant is presumed innocent. This animates the prohibition on shackles during trial and affords the accused the right not to wear prison garb in front of the jury. This presumption is the reason that the government may not introduce the defendant's prior convictions or present evidence of bad character except in certain prescribed circumstances. Jurors in criminal trials receive a specific instruction on the presumption of innocence prior to beginning deliberations in trial. However, in a number of jurisdictions, the instructions given to the jury when a defendant testifies are a significant legal obstacle standing in the way of this presumption of innocence. Jurors in a few states and federal courts all over the country receive instructions that a defendant's testimony should be viewed with caution because of his interest in the outcome of the case. In other states, the general instructions about assessing credibility of all witnesses ask courts to consider the witnesses' "interest in the outcome of the case." Since no one has a clearer or more apparent interest in the outcome of the case than the defendant, any type of instruction that highlights an interest in the outcome of the case undermines the presumption of the innocence and is a significant infringement on his¹ constitutional rights. Put another way, despite the presumption of innocence, jurors are told when a person accused of a crime proclaims his innocence in the courtroom that testimony should be viewed with skepticism.

As twenty-first century scholars reexamine our criminal legal system through the lens of mass incarceration, the criminal trial itself should be reexamined. There is a number of practices in the American criminal trial that unfairly disadvantage the accused. Of those individuals who choose to go to trial, only a small number decide to testify. A number of legal principles results in a silencing of defendants—the ability to impeach a defendant with his prior convictions, instructions that direct jurors to not hold it against a defendant when he remains silent, and a judge's ability to sentence more harshly a defendant who testifies but is disbelieved.² This Article adds to this discussion about the silencing of defendants by arguing that criminal jury instructions also contribute to the silencing of defendants and joins the chorus of those who are calling for more favorable practices and procedures to encourage defendants to testify.

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These troubling jury instructions are yet another serious obstacle to fairness and contribute to the inequities of the criminal legal system on those ensnared in it.

I have previously written about how the phenomenon of poorly understood jury instructions concerning the presumption of innocence and burden of proof should require voir dire on the topic to help identify jurors who cannot or will not follow those important legal principles.³ I have also argued previously that the police credibility instruction telling jurors to treat the testimony of a police officer like any other witness is unfair to the defense because it tells jurors to ignore the real biases inherent in law enforcement witnesses' testimony.⁴

Now, I propose a reconstruction of the jury instruction about the defendant's testimony in all states to help strengthen the application of the presumption of innocence in criminal jury trials. All defendants in criminal cases enjoy the right to testify (as well as the right not to testify). Trial courts must stop highlighting through their jury instructions that defendants have a unique interest in the outcome of the case when they testify. Doing so undermines the inadequately understood instructions on the presumption of innocence and the burden of proof. Particularly, in cases where the accused would like to testify and the government's main proof comes from law enforcement witnesses, the defendant is at a certain disadvantage that is inconsistent with his constitutional rights and does not square with the realities of our criminal legal system.

An instruction more consistent with the burden and presumption of innocence is needed even in jurisdictions where a defendant's testimony is not singled out during jury instructions. Trial judges should be instructing jurors to evaluate a defendant's testimony just as they would any other witness. Jurors should also be told to keep in mind the presumption of innocence in evaluating the accused's testimony and remember that the defendant's testimony does not relieve the government of its burden to prove guilt beyond a reasonable doubt. Jurors should be instructed to ask themselves whether the testimony of the defendant or any other defense witness gives them a reason to doubt the government's case. Such an instruction could encourage more criminally accused persons to testify at trial and result in fairer outcomes.

This Article will proceed in several parts. The first situates the importance of revisiting criminal jury instructions in the broader criminal legal reform

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movement. Part II explains the role the presumption of innocence purports to play in our criminal legal system. Part III explains jury instructions generally and specifically addresses the instructions given to jurors when the defendant testifies and general credibility instructions, and contrasts those with police officer testimony instructions. Part IV explores how the law works to discourage testimony by defendants and how jury instructions play a role in this silencing of defendants. The Article concludes with solutions, including a proposed new instruction that courts should give when an accused person testifies.

I. Situating the Issue in the Criminal Legal Reform Movement

As the nation struggles to dismantle mass incarceration, the system is being reimagined by many scholars and activists. Some have called for complete decarceration.⁵ Criminal justice reformers have tackled some of the more obvious injustices in the American system. Specialty courts have diverted some defendants from jail by recognizing the role of addiction and mental health in some jurisdictions.⁶ Decriminalization and legalization of marijuana has helped individuals traditionally targeted by police and prosecutors avoid convictions and the repercussions that come from drug convictions.⁷ The First Step Act, passed in 2019, focused its reforms on inhumanity in federal prisons.⁸ These steps, while worthwhile, will not end mass incarceration.

More steps to overhaul the criminal legal system must be taken. One legal scholar recently opined that if reform continues at its current pace, it would take seventy-five years just to cut our prison population in half.⁹ Everything from shrinking police forces, and what and who is prosecuted must be scrutinized.

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It has been pointed out by many, including our Supreme Court, that we no longer have a system of trials but a system of pleas.¹⁰ There are myriad consequences of conviction that are faced by those ensnarled in the system.¹¹ The most obvious of course is jail or prison time. But courts and reformers have focused not only on that serious consequence but also on the additional collateral consequences of conviction.¹² Everything from deportation, job loss, homelessness, to loss of a...