How Do You Say Fifth Amendment?

A single word can make a big difference, especially when the word is the main noun in a critical jury instruction.  This week Mark Bennett began and Jamie Spencer continued a conversation about the pattern instruction Texas judges give when a defendant does not testify.  The Texas instruction is: 

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. 

Mark says, what failure?  "How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a 'failure'?"  Jamie asks what other states do:  "Any of you out of staters have better jury instructions for this?"  The comments to Mark's post offer variations used in a few other states.

"The absolute constitutional right not to testify."

Wisconsin's pattern instruction is more neutral than the one in Texas.  It says:

A defendant in a criminal case has the absolute constitutional right not to testify.

The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.

The Seventh Circuit's pattern, 3.01, is similar:

The [A] defendant has an absolute right not to testify. The fact that the [a] defendant did not testify should not be considered by you in any way in arriving at your verdict.

You'd like to see something in there about why the right is in the Constitution and why we hold it sacred, but of course defense lawyers are free to argue that. 

Does it make a difference, that little word "failure"?  I don't know of specific research.  But if the human mind is so susceptible to vocabulary that simply hearing words like Florida, gray, wrinkle, lonely, and bingo can make us suddenly feel so old that we walk more slowly than normal, you can't rule it out. 

(Photo by Näystin at http://flickr.com/photos/naystin/513110523/; license details there.)