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WAIVER OF 5TH AMENDMENT RIGHT-DEFENDANT TESTIFYING/NOT TESTIFYING IN CRIMINAL CASE - MN Bench Book - Trial Procedures & Practices for Judges
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WAIVER OF 5TH AMENDMENT RIGHT-DEFENDANT TESTIFYING/NOT TESTIFYING IN CRIMINAL CASE

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


THE DEFENDANT HAS A CONSTITUTIONAL RIGHT TO NOT TESTIFY OR TO TESTIFY IN A CRIMINAL CASE.

  1. THE DEFENDANT SHOULD BE ADVISED, ON THE RECORD OUTSIDE THE PRESENCE OF THE JURY, OF THE RIGHT NOT TO TESTIFY AND THE RIGHT TO TESTIFY
  2. THERE SHOULD BE A WAIVER, FROM THE DEFENDANT ON THE RECORD OUTSIDE THE PRESENCE OF THE JURY, OF THE RIGHT NOT TO TESTIFY OR TO TESTIFY.
  3. THE DEFENDANT SHOULD ALSO INDICATE ON THE RECORD THAT THE DECISION TO TESTIFY OR NOT TESTIFY WAS HIS AND HIS ALONE.

The defendant has the right to not testify or to testify.[1] The defendant may waive either right, but the waiver must be voluntary and knowing.[2] It is strongly desirable, but not required, to have the defendant[3] testify on the record that he is voluntarily and knowingly waiving his right to testify;[4] When the record is silent, it is presumed that a defendant, who does not testify, and who is represented by counsel properly waived the right to testify.[5] A defendant’s decision to not testify cannot be used to create a presumption of guilt.[6] The defendant has the absolute right to request a jury instruction to that effect.[7] In Minnesota, the standard no-adverse-inference instruction is: “The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any adverse inference from the fact that the defendant has not testified in this case.”[8]

The defense has an affirmative duty to request the instruction.[9] The best practice is to wait for defense counsel to make the request, and then question the defendant himself.[10] This should be done outside of the presence of the jury.[11]




References:

  1. M.S.A. § 611.11: “The defendant in the trial of an indictment, complaint, or other criminal proceeding shall, at the defendant's own request and not otherwise, be allowed to testify…” see also In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005): “The defendant's right to testify in his or her own defense is protected by both the Fourteenth Amendment Due Process Clause and Minnesota state law.”
  2. In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005); see also State v. Walen, 563 N.W.2d 742, 751 (Minn.1997): “[I]t generally is conceded that the waiver of the right to testify, like the waiver of many other constitutional rights, should be voluntary and knowing,” citations omitted.
  3. Counsel cannot waive the right on behalf of the defendant. See State v. Rosillo, 281 N.W.2d 877, 878 (Minn.1979).
  4. “Although not required in Minnesota, it is common for a trial court to confirm with the defendant on the record that his waiver of the right to testify is knowing and voluntary.” In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005); see also State v. Walen, 563 N.W.2d 742, 751 (Minn.1997).
  5. In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005); see also State v. Smith, 299 N.W.2d 504, 506 (Minn.1980): “Here the record below does not establish either a denial of right to testify or inadequate advice. Rather, the record simply reveals that a criminal defendant, represented by counsel, did not testify. Without anything in the record suggesting otherwise, we must presume that the decision not to testify was made by defendant voluntarily and intelligently.”
  6. M.S.A. § 611.11: “…failure to testify shall not create any presumption against the defendant, nor shall it be alluded to by the prosecuting attorney or by the court.”
  7. “When requested by a criminal defendant who did not testify at trial, a state trial judge must give a no-adverse-inference instruction, that the jury should not draw any adverse inference from the fact that the defendant has not testified in the case.” McCollum v. State, 640 N.W.2d 610, 616 (2002); see also Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112 (1981).
  8. 10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed.1999).
  9. “A trial court ordinarily should not give a no-adverse-inference instruction unless the defense requests it.” McCollum v. State, 640 N.W.2d 610, 616 (2002); see also State v. Thompson, 430 N.W.2d 151, 153 & n. 3 (Minn.1988).
  10. McCollum v. State, 640 N.W.2d 610, 616 (2002); see also State v. Thompson, 430 N.W.2d 151, 153 & n. 3 (Minn.1988).
  11. Asking the question in the presence of the jury draws the defendant’s silence to the jury’s attention. Not requesting the instruction is a legitimate trial strategy. See State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999); State v. Eling, 355 N.W.2d 286, 293 (Minn.1984).