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Colorado Supreme Court Reverses Conviction Because Trial Court Failed to Give No-Adverse-Inference Jury Instruction for Choosing Not to Testify

by Douglas Ankney

he Supreme Court of Colorado reversed the conviction of Julian Anastacio Deleon because the trial court failed to give a no-adverse-inference instruction to the jury to explain to them that they could not hold his decision not to testify against him.

Deleon was charged with two counts of sexual assault on his girlfriend’s 9-year-old daughter. Deleon’s defense was that the victim fabricated the allegation. During voir dire, the trial court told the prospective jurors that Deleon “has no obligation to present any evidence or testimony at all. [He] does not have to testify. And if he chooses not to testify, you cannot hold it against him in any way that he did not.”

After jurors were selected and sworn, the court told them Deleon was not required to offer any evidence and that they would receive further instructions later in the trial. The victim testified that Deleon sexually assaulted her, but no physical evidence was introduced. Deleon exercised his Fifth Amendment right not to testify.

After the evidence was completed, Deleon tendered a no-adverse-inference instruction to the trial court that explained to the jury they could not consider his exercising that right in their deliberations. The trial court rejected the tendered instruction and stated it would instead give the pattern no-adverse-inference instruction that had been approved by the Colorado Supreme Court.

The judge then told the jury, “I will now instruct you on the law which you must apply in order to reach your verdict.... You must follow all the rules as I explain them to you.” But the court failed to give the no-adverse-inference instruction. Defense counsel made no objection. The jury found Deleon guilty. The court of appeals affirmed, and the Supreme Court granted Deleon’s petition for further review as to three questions: (1) whether Deleon’s tendered instruction preserved the issue that the trial court erred in failing to give any instruction, (2) whether the trial court’s comments during voir dire and after the jury was sworn constitute an effective no-adverse-inference instruction, and (3) whether the trial court’s failure to give the instruction require reversal.

The Court observed that the Fifth Amendment provides protection against self-incrimination, including a defendant’s right not to testify against himself. But since jurors often view this privilege as a shelter for wrongdoers and assume that those who invoke it are guilty of the crime, trial courts are required to instruct juries that they cannot consider a defendant’s refusal to testify when reaching their verdicts if the defendant asks for such an instruction. James v. Kentucky, 466 U.S. 341 (1984). The right to this no-adverse-inference instruction can be asserted in multiple ways. Id. Therefore, the Court concluded that Deleon’s proffered instruction preserved the issue for appeal.

It is left to the states to determine if juries are to be instructed verbally, in writing, or in both forms. Carter v. Kentucky, 450 U.S. 288 (1981). There is no constitutional right to any particular form, but the instruction must be effective to satisfy the constitution. Id. The Court determined that the trial court’s statements during voir dire were not effective instructions because the purpose in making the statements was to determine the mindset of the jurors and not to instruct them on the law. People v. Davis, 794 P.2d 159 (Colo. 1990). Deleon requested the instruction just prior to closing arguments which “ensur[es] that the jury hears and considers all applicable law before deliberations and aid[s] the overall comprehension of the jury.” People v. Baenziger, 97 P.3d 271 (Colo. App. 2004). Further, after the jury was sworn, they were told they would receive further instructions later in the trial, and just prior to closing arguments, the judge stated to the jury, “I will now instruct you on the law you must apply in order to reach your verdict,” but he then failed to give the no-adverse-inference instruction.

Having concluded the failure to give an effective no-adverse-inference instruction was a constitutional error, the Court then analyzed for harmless error because a conviction will not be reversed if the constitutional error was harmless. Chapman v. California, 386 U.S. 18 (1967). An error is not harmless if there is a reasonable possibility the error might have contributed to the verdict. Id.

The Court determined that the failure to give the instruction was not harmless because the case involved no physical evidence. That is, the case rested on the credibility of the victim versus the credibility of Deleon’s theory that the victim had fabricated the crime. Without the no-adverse-inference instruction, there was “no guarantee” the jury did not hold against Deleon his decision not to testify.

Accordingly, the Court reversed the judgment of the court of appeals and remanded to that court for further proceedings consistent with the Court’s opinion. See: Deleon v. Colorado, 449 P.3d 1135 (Colo. 2019). 

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