3.03 Defendant’s Constitutional Right Not to Testify

[Defendant] has a constitutional right not to testify and no inference of guilt, or of anything else, may be drawn from the fact that [defendant] did not testify. For any of you to draw such an inference would be wrong; indeed, it would be a violation of your oath as a juror.

Comment(s)

An instruction like this must be given if it is requested. Carter v. Kentucky, 450 U.S. 288, 299-303 (1981); Bruno v. United States, 308 U.S. 287, 293-94 (1939); see also United States v. Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989) (“We do not, however, read Carter as requiring any exact wording for such an instruction.”). It must contain the statement that no adverse inference may be drawn from the fact that the defendant did not testify, or that it cannot be considered in arriving at a verdict. United States v. Brand, 80 F.3d 560, 567 (1st Cir. 1996). It is not reversible error to give the instruction even over the defendant’s objection. Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). However, “[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection.” Id. at 340.