In Barnes v. State, the Georgia Court of Appeals reversed the defendant’s convictions for statutory rape, child molestation, enticing a child for indecent purposes, and contributing to the delinquency of a minor, where the trial court failed to instruct the jury that the defendant’s decision not to testify could not be considered when reaching a verdict.
Prior to trial, the defendant’s attorney filed a written request to instruct the jury on the defendant’s right not to testify. The trial court gave the instruction but omitted the last sentence which instructs the jury that it may not consider a defendant’s choice not to testify in reaching its decision. On appeal, the defendant argued that the trial court’s failure to give the last sentence of this instruction was harmful error since, without it, jurors would have been able to consider the fact that he chose not to testify in reaching their verdict.
The Court of Appeals agreed with the defendant and reversed his conviction. Since trial counsel did not raise an objection to the incomplete instruction, the Court reviewed the issue under the plain error standard and applied the four-prong Kelly test, which requires a finding that 1) there must be a deviation from a legal rule; 2) the error must be clear and obvious; 3) the appellant’s substantial rights must have been affected; and 4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The first two prongs of the test were easily met. It has been established previously in Georgia that failing to give this instruction, when the defendant has requested it, is erroneous. Additionally, the error in this case is clear and not subject to reasonable dispute.
As to the third prong, the Court explained that, ordinarily, a defendant is required to show that the error likely affected the outcome of the proceeding. However, no such showing was required here since jurors possess a well-recognized tendency to infer that a defendant who does not testify, must be guilty. Because of this, and because the right against self-incrimination is constitutionally protected, the Court found that the defendant’s substantial rights had been affected.
As to the fourth prong, the Court noted that the privilege against compulsory self-incrimination has a long and established history in both American and English jurisprudence. Additionally, the Supreme Court of Georgia had already recognized that the adverse inference instruction must be given, when timely requested by the defendant.
As a result, the Court reversed the defendant’s conviction and remanded the case for a new trial.
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