Criminal Law

355. Defendant's Right Not to Testify

355. Defendant's Right Not to Testify

A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.

Bench Notes

Instructional Duty

This instruction should only be given on request. (Carter v. Kentucky (1981) 450 U.S. 288, 300 [101 S.Ct. 1112, 67 L.Ed.2d 241]; People v. Evans (1998) 62 Cal.App.4th 186, 191 [72 Cal.Rptr.2d 543].)

The court has no sua sponte duty to seek a personal waiver of the instruction from the defendant. (People v. Towey (2001) 92 Cal.App.4th 880, 884 [112 Cal.Rptr.2d 326].)

The United States Supreme Court has held that the court may give this instruction over the defendant's objection (Lakeside v. Oregon (1978) 435 U.S. 333, 340-341 [98 S.Ct. 1091, 55 L.Ed.2d 319]), but as a matter of state judicial policy, the California Supreme Court has found otherwise. (People v. Roberts (1992) 2 Cal.4th 271, 314 [6 Cal.Rptr.2d 276, 826 P.2d 274] ["[T]he purpose of the instruction is to protect the defendant, and if the defendant does not want it given the trial court should accede to that request, notwithstanding the lack of a constitutional requirement to do so."].)


Instructional Requirements. People v. Lewis (1990) 50 Cal.3d 262, 282 [266 Cal.Rptr. 834, 786 P.2d 892] [no sua sponte duty to instruct].

Secondary Sources

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 642, 658.

2 Witkin, California Evidence (4th ed. 2000) Witnesses, § 439.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80, Defendant's Trial Rights, § 80.08, Ch. 85, Submission to Jury and Verdict, §§ 85.02[1A][a], 85.04[2][b] (Matthew Bender).

(New January 2006)