Motion to Amend Jury Instruction on Defendant’s Right Not to Testify

This sample motion asks the trial court to amend the pattern jury instruction on a defendant’s right not to testify to include possible innocent reasons why a person might choose not to testify.  Most pattern instructions improperly “blindfold” jurors by withholding important information about possible innocent reasons why a criminal defendant might not testify, leaving jurors to rely on improper background assumptions that innocent people will testify in their defense and that those who choose not to testify are more likely to be guilty.  The proposed amendment (found at p. 7)  builds on the explanation-based jury instructions on flight that some jurisdictions have crafted (which include innocent reasons why a suspect might flee) and argues that jury instructions on the right not to testify should similarly include reasons why an innocent person might not testify in their defense.