WPIC 6.31 Defendant's Failure to Testify

This instruction must be given if requested by a non-testifying defendant. It can be given as a separate instruction or inserted into WPIC 4.01 (Burden of Proof) following the sentence, “The defendant has no burden of proving that a reasonable doubt exists.”

When requested by defendant. Upon request, the defendant has a federal constitutional right to an instruction such as WPIC 6.31. Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981).

When not requested by defendant. This instruction is intended to protect the defendant's constitutional right against self-incrimination, yet it can potentially undermine that right by calling further attention to the defendant's silence at trial. State v. Dauenhauer, 103 Wn.App. 373, 376, 12 P.3d 661 (2000); State v. King, 24 Wn.App. 495, 601 P.2d 982 (1979). In some cases, the defendant may choose not to request the instruction.

Appellate opinions sometimes suggest that, as a matter of best practice, the instruction should not be given unless it is requested by the defendant. The cases, however, hold that the trial judge does not necessarily commit reversible error by giving the instruction absent such a request, or even over a defendant's objection. See generally State v. Goldstein, 65 Wn.2d 901, 400 P.2d 368 (1965) (holding that trial judges do not commit prejudicial error by giving the instruction on the court's motion or at the request of the State); State v. Dauenhauer, 103 Wn.App. at 375–77 (finding no prejudicial error when the trial judge gave the instruction and the defendant did not object, but leaving open the possibility that prejudice is to be determined on a case-by-case basis).

The decisions of the Supreme Court of the United States are to the same effect. See Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (observing that “it may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection,” but holding that giving the instruction over the defendant's objection does not violate the federal constitutional right against compulsory self-incrimination).