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00-2691 U.S. v. Skidmore

By: dmc-admin//June 25, 2001//

00-2691 U.S. v. Skidmore

By: dmc-admin//June 25, 2001//

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“We agree with Skidmore that his decision not to present any witnesses or evidence should not have been referred to as a ‘failure’ of any kind on his part. The court’s use of this word in the instruction is problematic because, as Skidmore notes in his brief, it carries with it the possible implication from the court to the jury that Skidmore has neglected a responsibility to present testimony and other evidence. A conscious decision by a defendant not to testify, present other witnesses, or produce any other evidence should not be characterized in the instructions as constituting a failure on the part of a defendant. Ironically, the district court used the word failure in explaining to the jury that Skidmore had a right not to present witnesses or any other evidence and that it was not permitted to draw any negative conclusions from his decision to exercise this right.

“While we take this opportunity to emphasize that this language should not be used in similar jury instructions in the future, we find that the district court’s inclusion of the word failure in this case does not constitute plain error. The portion of the instruction Skidmore challenges is a section of an individual instruction that was one of twenty-six instructions read to the jury… Although the court’s use of the word failure was indeed a poor choice, the context of the instruction in which the word was used was one in which the court was clearly indicating to the jury that the government had the burden of proving Skidmore’s guilt, and that he had no obligation to prove his innocence. Therefore, we find that this individual instruction, read in its entirety, along with the twenty-five other instructions presented to the jury, was not so tainted by the district court’s use of the word failure that we can now conclude that Skidmore might have been acquitted but for the court’s inclusion of this word in the jury instructions.”

Affirmed.

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