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3.3 Defendant's Decision Not to Testify

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3.3 DEFENDANT’S DECISION NOT TO TESTIFY

A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.

Comment

Although the Committee recommends this instruction be given in every criminal case in which the defendant does not testify, "[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection." Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). If the instruction is requested by the defendant, it must be given. Carter v. Kentucky, 450 U.S. 288 (1981); see also United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008), and United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008).