Good post. But I think juries do hold it against the defendant, even when instructed not to do so.
I personally would try not hold it against anyone, only because I know how the state prosecutors will try to lie and twist to get their conviction.
Trust me. I just went thru a situation where there was a false accusation. I have battled the state. It can be daunting. Which is why I am so adamant about limiting the state’s power.
Yes, I know that happens, and there is some research to support the claim that juries will give it all the more weight precisely because they are instructed not to.
However, some counsel are convinced that juries scrupulously follow this instruction to the perversion of proper justice. One of them is Andrew McCarthy of National Review who offered his experience on this at the Corner and also appears to agree with me and Scalia:
Juries, in general, are much more responsible than they are given credit for being. They tend to follow judges’ instructions very conscientiously. In high profile cases, judges tell them not to taint their fact-finding by reading, watching, or listening to the coverage, and they comply. More significantly, they really do follow the directive that the defendant has a right not to testify and that they therefore cannot draw an inference of guilt from a defendant’s decision not to take the stand. This is a truly remarkable thing. Before absolving someone of committing a terrible crime, people want the defendant to look them in the eye and convince them that he/she did not do it. Yet, we tell jurors that to take that commonsense position is to violate a defendant’s constitutional rights. So, hard as it is, jurors usually bend over backwards not to hold a failure to testify against the defendant.Just to be clear, I’ve never liked this interpretation of the Fifth Amendment, which is a “refinement” of the criminals’ rights revolution of the sixties and seventies. To me, the Fifth Amendment means an accused has a right not to be compelled to testify, not that the accused has an additional right to deny the jury, the prosecutor, and the court the ability to draw the perfectly reasonable conclusion that, if there were a plausible explanation consistent with innocence, the accused would have provided it. But that ship sailed half a century ago, and even though it remains a perfectly reasonable conclusion to draw, the law says jurors can’t draw it . . . and it is a law that jurors scrupulously follow in my experience.