Also known as: fail to testify · failing to testify · failed to testify · adverse inference from silence
Written by attorneys · grounded in primary & secondary sources — see below
A criminal defendant's decision not to take the stand at trial. The Fifth Amendment bars the prosecution and the trial judge from commenting on that decision or inviting the jury to treat silence as substantive evidence of guilt. Upon timely request the defendant is entitled to a jury instruction directing that no adverse inference may be drawn from the choice to remain silent.
Felicity French stood trial for embezzlement. She elected not to testify. Her lawyer timely asked the court to tell the jury it could draw no adverse inference from her silence. The judge gave the instruction. The jury acquitted.
Fatou Fall was prosecuted for arson. She remained silent at trial. In final instructions the judge told jurors they could consider her failure to testify when deciding whether the state had proved guilt. The appellate court reversed the conviction.
Fumiko Fujimoto was convicted of fraud after the prosecutor repeatedly noted her failure to testify. The state supreme court found the comments unconstitutional but affirmed on harmless-error grounds. The reviewing court examined the entire record to decide whether the error contributed to the verdict.
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Fabian Flynn faced state theft charges and did not testify. The prosecutor urged the jury to infer guilt from his silence. The Supreme Court held that the Fifth Amendment prohibition on adverse comment applies to the states through the Fourteenth Amendment.
Flora Ford was arrested and invoked her right to remain silent during police questioning. At trial she again chose not to testify. The court permitted comment on her post-arrest silence only after she testified inconsistently with her earlier statements.
Felipe Figueroa was tried for murder. In closing the prosecutor repeatedly called the state's evidence unrefuted. Defense counsel had already highlighted the defendant's silence in opening statement. The Court held the comments did not violate the Fifth Amendment.
No. The Fifth Amendment forbids both the prosecutor and the trial judge from inviting the jury to treat a defendant's silence as evidence of guilt. Any such instruction is unconstitutional.
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Upon a timely request the defendant is constitutionally entitled to an instruction that the jury must not draw any adverse inference from the decision not to testify.
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Yes. A trial judge sitting as factfinder may not rely on a defendant's failure to testify as substantive evidence of guilt. Judicial comments linking silence to an inference of guilt violate the Fifth Amendment.
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A prosecutor may note that certain evidence is uncontradicted provided the argument does not invite the jury to draw an adverse inference from the defendant's personal decision not to testify.
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…admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify.[^maj-20] India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major…