CALCRIM No. 355. Defendant’s Right Not to Testify

Judicial Council of California Criminal Jury Instructions (2020 edition)

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D. DEFENDANT’S TESTIMONY AND STATEMENTS
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.
New January 2006
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.”].)
AUTHORITY
• 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].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1191-1192 [67 Cal.Rptr.3d 871].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 725,
742.
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 458.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
117
Defendant’s Trial Rights, § 80.08, Ch. 85, Submission to Jury and Verdict,
§§ 85.02[1A][a], 85.04[2][b] (Matthew Bender).
CALCRIM No. 355 EVIDENCE
118

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