Emory Law Journal


Vida B. Johnson


Criminal law and procedure tell us a criminal defendant is presumed innocent. Jurors in criminal trials receive a specific instruction on the presumption of innocence prior to beginning deliberations in trial. But the instructions given to the jury in a number of jurisdictions when a defendant testifies is a significant legal obstacle standing in the way of the presumption of innocence. Jurors in a few states and federal courts all over the country receive instructions that a defendant’s testimony should be viewed with caution because of his interest in the outcome of the case. In other states the general instructions about assessing credibility of all witnesses asks courts to consider the witnesses “interest in the outcome of the case.” Since no one has a clearer or more apparent interest in the outcome of the case than the defendant, any type of instructions that highlights an interest in the outcome of the case undermines the presumption of the innocence is a significant infringement on his constitutional right. Despite the presumption of innocence, jurors are told when a person accused of a crime proclaims his innocence in the courtroom, that testimony should be viewed with skepticism. This Article shows how these types of instructions work to silence defendants. The Article proposes a new jury instruction that should be given whenever an accused person testifies.

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