Monday, February 21, 2011

Case o' The Week: Silence is Golden (Except at Trial) - Padilla and "No Adverse Inference" Instructions

A slow week in the Ninth lets us stretch back a bit to consider Padilla, a disappointing recent decision on jury instructions and the right not to testify. United States v. Padilla, 2011 WL 420686 (9th Cir. Feb. 9, 2011), decision available here.

Players: Decision by Judge McKeown (below), joined by Judges Hug and D.W. Nelson.

Facts: At the outset of Padilla’s marijuana trial, the defense requested a jury instruction pursuant to Carter v. Kentucky, 450 U.S. 288 (1981) – instructing the jury that it could make no adverse inference from the defendant’s failure to testify. Id. at *1 (this is called a, “no-adverse-inference,” or “Carter” instruction).

Before opening statements the district court gave a different instruction that referred to a defendant’s right not to testify. Id.

At the conclusion of evidence, the judge told counsel it would give the same instructions given in an earlier mistrial of Padilla. Defense counsel did not specifically object to the exclusion of the proposed Carter instruction, and the defense again failed to object when a “no-adverse-inference” instruction was omitted during the final instructions to the jury. Id. at *2-*3.

Issue(s): “This appeal presents two questions: whether the preliminary instruction was sufficient under Carter and, if so, whether Padilla was entitled to a second Carter instruction as part of the final set of instructions.” Id. at *2. “We consider here whether the district court’s preliminary instruction that the jury not consider the defendant’s choice not to testify satisfies the court’s constitutional obligation under Carter.” Id. at *1.

Held: “We hold that it does under the circumstances of this case and affirm the conviction.” Id. “Carter requires an instruction adequate to inform jurors of their obligation to draw no adverse inference from the defendant’s choice not to testify.” Id. at *4. “Under these circumstances, not giving a duplicate Carter instruction at the close of evidence can hardly be characterized as plain error.” Id. at *5 (emphasis added).

Of Note: In her analysis Judge McKeown considers two of the lead Ninth Circuit decisions on the “no-adverse-inference” instruction: United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996), and United States v. Soto, 519 F.3d 927 (9th Cir. 2008). Id. at *2-*4. She concedes that Judge Gould criticized the “bare bones” version of this instruction in Castaneda, and gives a sympathetic ear to his concerns – Castaneda “is troublesome in many respects.” Id. at *3.

In Padilla, however, the instruction given was at least arguably distinguishable from the minimal Castaneda instruction, so the panel concludes that “we need not confront the potential difficulties posed by Castaneda.” Id. If a trial court is foolish or sloppy enough to give the minimal Castaneda bare-bones instruction on a defendant’s right not to testify, note this red flag waived by Judge McKeown for potential en banc review.

How to Use: There is some troubling language in at the end of Padilla rejecting a defendant’s constitutional right to have a Carter instruction given twice – once when the jury is sworn, and again before deliberation. Id. at *4. Make sure, however, that AUSAs or trial courts understand the context of this language.

In Padilla, the trial was only four days long, there was no reference in the government’s closing argument to the defendant’s failure to testify, and the defense twice failed to request an additional Carter instruction at the conclusion of the trial. Id. at *5. This was, therefore, not plain error.

Not clear if the decision would have come out the same way if Padilla had asked for the Carter instruction at the close of evidence. Like renewing a Rule 29 motion, we should add “request no-adverse-inference-instruction” to the defense check-list of tasks at the end of trial.

For Further Reading: Is one vague instruction on the Fifth Amendment right to remain silent, at the outset of a criminal trial, enough to adequately educate the jury on this critical concept?

Simply put, “no.”

For a fascinating discussion on real jurors’ very real adverse inferences drawn against our silent clients, see Frank & Broschard, The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, is Either of Them Safe?, 10 Lewis & Clark Law Rev. 237 (2006).

Image of the Honorable Judge Margaret McKeown from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Tuesday, February 22, 2011 10:04:00 AM  

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