Replies

What the Supreme Court has said is that the jury is not allowed to consider the fact that the defendant has been unwilling to tell his or her side of the story to the jury and may draw no adverse inference from it. When the judge gives that instruction to the jury, it has the effect of perverting justice and confusing the jury, who has been solemnly told that their duty requires the jury to ignore what common sense tells them is quite important. It defies common sense

You're very wrong. There are MANY tactical reasons why an attorney may not have his defendant testify. To have a jury GUESSING as to why that was is sheer lunacy, especially given the reminder that the Jury, as the Factfinders, must decide what is true beyond a reasonable doubt. "Common sense" (which isn't that common... 50% of voters voted for Obama) inferences are NOT going to help you attain "beyond a reasonable doubt". The moment you have the jury start guessing, then reasonable doubt exists, and you'll never properly convict anyone... and many innocents will then be convicted... and our Founders knew there could not be a greater injustice.

No, Justice Scalia and I are NOT wrong.

The defense counsel has a mouth. He can offer whatever spin he feels relevant to the jury as to why the defendant is not testifying.

We trust and require the jury to evaluate and consider and deliberate on all manner of complicated evidence.

The very simple fact of a defendant, such as the mother of a killed toddler who knows all the relevant facts of the toddler’s death, being unwilling to tell those facts to the jury is a RELEVANT FACT.

The essential function of the jury is to consider the relevant facts in deciding the verdict.

And you are completely wrong about what the Founders would have thought, as Scalia explained in what I quoted.