1. Under the Act of March 16, 1878, the accused in a criminal
case in the federal court is entitled, upon request, to have the
jury instructed, in substance, that his failure to avail himself of
the privilege of testifying does not create any presumption against
him, and must not be permitted by the jury to weigh against him. P.
308 U. S.
292.
2. Refusal to grant such an instruction is not a "technical
error" to be disregarded upon review or motion for new trial,
within the meaning of 28 U.S.C. § 391. P.
308 U. S.
293.
105 F.2d 921 reversed.
Certiorari,
post, p. 536, to review error in the
affirmance of a criminal conviction.
Page 308 U. S. 291
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
In affirming the conviction of Jerry Bruno, who, with
eighty-seven others, was convicted of a conspiracy to violate the
narcotic laws, the Circuit Court of Appeals for the Second Circuit
dealt with an important question in the administration of federal
criminal justice in such a way as to lead us to grant certiorari,
308 U.S. 536.
Some of Bruno's codefendants took the witness stand. He did not.
The trial court gave the following instructions to the jury
regarding the attitude to be observed by them towards the accused
as a witness:
"It is the privilege of a defendant to testify as a witness if,
and only when, he so elects, and when he does testify, his
credibility is to be determined in the light of his interest, which
usually is greater than that of any other witness, and is therefore
a matter which may seriously affect the credence that shall be
given to his testimony. "
Page 308 U. S. 292
Bruno requested this additional instruction:
"The failure of any defendant to take the witness stand and
testify in his own behalf does not create any presumption against
him; the jury is charged that it must not permit that fact to weigh
in the slightest degree against any such defendant, nor should this
fact enter into the discussions or deliberations of the jury in any
manner."
The trial judge declined this request, saying "I feel that I've
already covered that." The exception to this denial having been
saved, the Circuit Court of Appeals found no error in the refusal,
although confessing that the guidance which had been given the jury
"was not the equivalent of what the defendant had requested,"
United States v. Bruno, 105 F.2d 921, 923. By this, we
take it, the court below meant that the topic on which Bruno
proffered an instruction had not been charged at all.
Therefore, the narrow question before us is whether, in these
circumstances Bruno had the indefeasible right to have the jury
told in substance what he asked the judge to tell it. The issue is
determined by a proper application of the Act of March 16, 1878, 20
Stat. 30, now 28 U.S.C. § 632. [
Footnote 1]
That Act freed the accused in a federal prosecution from his
common law disability as a witness. But Congress coupled his
privilege to be a witness with the right to have a failure to
exercise the privilege not tell against him. The accused could,
"at his own request but not
Page 308 U. S. 293
otherwise, be a competent witness. And his failure to make such
request shall not create any presumption against him."
Such was the command of the lawmakers. The only way Congress
could provide that abstention from testifying should not tell
against an accused was by an implied direction to judges to
exercise their traditional duty in guiding the jury by indicating
the considerations relevant to the latter's verdict on the facts.
Sparf v. United States, 156 U. S. 51. By
legislating against the creation of any "presumption" from a
failure to testify, Congress could not have meant to legislate
against the psychological operation of the jury's mind. It laid
down canons of judicial administration for the trial judge to the
extent that his instructions to the jury, certainly when
appropriately invoked, might affect the behavior of jurors.
Concededly the charge requested by Bruno was correct. The Act of
March 16, 1878, gave him the right to invoke it.
A subsidiary question remains for determination. It derives from
the Act of February 26, 1919, 40 Stat. 1181, 28 U.S.C. § 391,
[
Footnote 2] whereby appellate
courts are under duty in criminal as well as in civil cases to
disregard "technical errors, defects, or exceptions which do not
affect the substantial rights of the parties." Is the disregard of
the right which Congress gave to Bruno an error, the commission of
which we may disregard? We hold not. It would be idle to
predetermine the scope of such a remedial provision as § 391 by
anticipating the myriad varieties of rulings made in trials and
attempting an
Page 308 U. S. 294
abstract, inclusive definition of "technical errors." Suffice it
to indicate what every student of the history behind the Act of
February 26, 1919, knows -- that that Act was intended to prevent
matters concerned with the mere etiquette of trials and with the
formalities and minutiae of procedure from touching the merits of a
verdict. Of a very different order of importance is the right of an
accused to insist on a privilege which Congress has given him.
To the suggestion that it benefits a defendant who fails to take
the stand not to have the attention of the jury directed to that
fact, it suffices to say that, however difficult it may be to
exercise enlightened self-interest, the accused should be allowed
to make his own choice when an Act of Congress authorizes him to
choose. And when it is urged that it is a psychological
impossibility not to have a presumption arise in the minds of
jurors against an accused who fails to testify, the short answer is
that Congress legislated on a contrary assumption, and not without
support in experience. It was for Congress to decide whether what
it deemed legally significant was psychologically futile.
Certainly, despite the vast accumulation of psychological data, we
have not yet attained that certitude about the human mind which
would justify us in disregarding the will of Congress by a dogmatic
assumption that jurors, if properly admonished, neither could nor
would heed the instructions of the trial court that the failure of
an accused to be a witness in his own cause "shall not create any
presumption against him."
We conclude that the substance of the denied request should have
been granted, and the judgment therefore is
Reversed.
MR. JUSTICE McREYNOLDS concurs in the result.
[
Footnote 1]
Section 632:
"In the trial of all indictments, informations, complaints, and
other proceedings against persons charged with the commission of
crimes, offenses, and misdemeanors, in the United States courts,
Territorial courts, and courts-martial, and courts of inquiry, in
any State or Territory, including the District of Columbia, the
person so charged shall, at his own request but not otherwise, be a
competent witness. And his failure to make such request shall not
create any presumption against him."
[
Footnote 2]
Section 391:
"All United States courts shall have power to grant new trials,
in cases where there has been a trial by jury, for reasons for
which new trials have usually been granted in the courts of law. On
the hearing of any appeal, certiorari, or motion for a new trial,
in any case, civil or criminal, the court shall give judgment after
an examination of the entire record before the court, without
regard to technical errors, defects, or exceptions which do not
affect the substantial rights of the parties."