EVIDENCE - DEFENDANT'S RIGHT NOT TO TESTIFY
The defendant is not compelled to testify, and the fact that a defendant does not testify cannot be used as an inference of guilt and should not prejudice him/her in any way. You must not permit that fact to weigh in the slightest degree against the defendant, nor should this fact enter into your discussions or deliberations in any manner.
Notes on Use
This instruction should be given only if it is requested by the defendant.
The above instruction is modeled after those required by Carter v. Kentucky, 450 U.S. 288 (1981), and Bruno v. United States, 308 U.S. 287 (1939). In Carter, the Court held that "a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." The Court held that the right to have such an instruction given, when requested by the defendant, was guaranteed under the Due Process Clause of the Fourteenth Amendment. Carter disagrees with prior decisions by the Court of Criminal Appeals. See Ellis v. State, 1977 OK CR 13, 558 P.2d 1191; Brannin v. State, 1962 OK CR 121, 375 P.2d 276.