A new findings instruction?

The Data for Defenders program at the University of Michigan Law School promotes creative and evidence-based advocacy in criminal courtrooms by providing defenders with access to motions and briefs that incorporate cutting-edge social science research into defense advocacy.  One of the motions that we drafted is a motion to modify the current pattern criminal jury instruction about a defendant's right to remain silent. Based on important social science research about assumptions that jurors are likely to make about the reasons why defendants choose not to testify, we are proposing to add language that provides jurors with innocent reasons why a defendant might choose not to testify so the instruction reads as follows:

Every defendant has the absolute right not to testify. A defendant may choose not to testify for any number of innocent reasons, including a fear of not coming across well due to poor self-presentation skills, nervousness about public speaking, or because their lawyer has advised them not to testify for reasons unrelated to their guilt or innocence in this case. When you decide the case, you must not consider the fact that the defendant did not testify. It must not affect your verdict in any way.

Posted on CrimProfBlog.