Warning: mysqli_num_fields() expects parameter 1 to be mysqli_result, boolean given in /home/ucmjdef1/public_html/wp-includes/wp-db.php on line 3283

bestmilitarydefenseucmjdefenselawyer08

Failure to testify. Benchbook, para. 7-12

Failure to testify. Benchbook, para. 7-12

  1. General rule. When the accused does not testify at trial, defense counsel may requestthat the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel’s election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice. Mil. R. Evid. 301(g).
  2. In United States v. Forbes , 61 M.J. 354 (C.A.A.F. 2005), the court adopted thefollowing analysis. The military judge is bound by the defense election unless the judge performs a balancing test that weighs the defense concerns against the case-specific interests of justice. This is the same balancing test that is found in M.R.E. 403. Something more than just a generalized fear that the panel will hold it against the accused must be present. If the military judge follows that analysis, she will be granted abuse of discretion on review. If she does not, the test will be de novo. If there is error, then the test for prejudice is: a presumption of prejudice, where the burden shifts to the government to prove by a preponderance of the evidence that no prejudice exists.
  3. If the members ask a question that implicates the accused’s silence, the military judge has an affirmative duty to give the instruction. United States v. Jackson , 6 M.J. 116 (C.M.A. 1979).