Lakeside v. State of Oregon Petition and Briefs

    The Supreme Court 
of the United States

Ensio Lakeside
versus

State of Oregon

Petition ana Briefs

Law Reprints
Criminal Law Series 
Volume 9, no. 23 
1977/1978 Term



IN THE

S uprem e C o u rt of tfje fBmteb States?
OCTOBER TERM, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,
Petitioner,

v.

OREGON,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OREGON

PETITION FOR WRIT OF CERTIORARI

PHILLIP M. MARGOLIN 
Nash & Margolin 
555 Oregon Nat’l Bldg.
610 S.W. Alder 
Portland, OR 97205 
Telephone: (503) 248-0731

Court-appointed Attorney 
for Petitioner



PETITION FOR WRIT OF CERTIORARI
TABLE OF CONTENTS

Citations .....................................................
Jurisdiction.......... .................................. * •
Question Presented . ........  * •
Constitutional Provisions Involved • • • • « ................
Statement of F a c t s ............ ........................ • * •
Reasons Why a Writ of Certiorari Should be Issued

I. The importance of the issues raised
outside of the facts of the specific case0 • • * •
II. Why giving the "failure to testify" 
instruction over objection of defense 
counsel violates the Fifth Amendment to
the United States Constitution. . ............... ■
III. Why the giving of the "failure to
testify" instruction, over objection, violates 
the Sixth Amendment to the United States 
Constitution. ............ ° • • • 3
IV. Since it is reversible error for a 
trial court to refuse to give the "failure 
to testify" instruction when requested by 
defense counsel, how can it be reversible
error for the court to give such an instruction? » •

Conclusion

1
2

2
2
3
4

4

11

13

Constitutional Provisions Involved 
Amendment V ........ ..
Amendment VI .........................« . . .
Amendment XIV .............................

Oregon Revised Statutes
ORS 162.155 3



Cases Cited

Bruno v. United States, 308 US 287 (1959) 11
Griffin v. California, 380 U.S. 609 (1965) 6
Gross v. State, 306 NE 2d 371 (Ind. Supp., 1974) 5
Harvey v. State, 187 So 2d 59 (Pla App 1966) 6
Mengarelli v„ U.S. Marshall, 476 F2d 617 (CA9, 1973) 5
Pearson v. State, 28 Md. App. 196, 343 A2d. 916 (1975) 6
People v. Horrigan, 253 Cal App 2d 519, 61 Cal Rptr 403 (1967) 5
People v. Molano, 253 Cal App 2d 841, 61 Cal Rptr 821 (1967) 5,7
Rogers v. State, 486 SW2d. 786 (Tex Cr App 1972) 6
Russell v. State, 240 Ark 97, 398 SW2d. 213 (1966) 5
State v0 Baxter, 51 Haw 57, 454 P2d. 366 (1969) 6,11
State v. Goldstein, 65 Wash. 2d 901, 400 P2dc 388 (1965) 5
State v0 Hale, 22 Or App 144, 537 P2d 1173 (1975) 11
State Vo Kimball, 176 NW2d. 864 (Iowa, 1970) 5
State v. Lakeside, 25 Or App 539, 549 P2d. 1287 (1976) 1
State y0 Lakeside, 277 Or 569, P2d. (1977) 2,6
State v. White, 285 A2d 832 (me, 1972) 5
U. So Vo Ash, 413 U.S. 305, (1973) 8
U. So v. McGann, 431 F2d 1104 (CA 5, 1970) 6
Uc S. v. Rimanich, 422 F2d 817 (CA 7, 1970) 6
U. S„ v. Schwartz, 398 F2d. 464 (CA 7, 1968) 6
U. S. v. Smith, 392 F2d 302 (CA 4, 1968) 5
Villines v0 State, 492 P2d 343 (Okla Ct of Crim Appeals, 1971) 5



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1976

No.

ENSIO RUBEN LAKESIDE, Petitioner 
v.

STATE OF OREGON, Respondent

PETITION FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT OF THE STATE OF OREGON

Petitioner prays that a writ of certiorari issue to 
review the judgment of the Supreme Court of the State of Oregon 
which was made and entered in the above cause, on March 17, 1977.
A petition for rehearing was filed with the Oregon Supreme Court 
and this petition for rehearing was denied on April 12, 1977.

CITATIONS TO OPINIONS BELOW
Petitioner was charged with Escape in the Second Degree,

ORS 162.155. Petitioner was found guilty by a jury and was sentenced 
on October 1, 1975. Petitioner appealed the judgment of the trial 
court to the Oregon Court of Appeals.

The Oregon Court of Appeals reversed petitioner's con­
viction in State of Oregon v. Ensio Ruben Lakeside, 25 Or App 539,

l



549 P2d. 1287 (1976). The State of Oregon petitioned the 
Oregon Supreme Court for review of the opinion of the Court 

of Appeals and review was granted.
The Oregon Supreme Court reinstated petitioner's con­

viction and reversed the decision of the Oregon Court of Appeals, 
with one Justice dissenting, in State of Oregon v. Ensio Ruben 
Lakeside, 277 Or 569, P2d. (1977).

JURISDICTION
The jurisdiction of this Court is invoked under 28 

U.S.C., Section 1257 (3).
QUESTION PRESENTED

Is it a violation of the Self-Incrimination Clause of 
the Fifth Amendment to the United States Constitution and a 
violation of a defendant's Right to Counsel, guaranteed by the 
Sixth Amendment to the United States Constitution, for the trial 
court to comment on a defendant's failure to testify, by giving 
a jury instruction concerning this fact, after a defendant has 
made a timely objection to the giving of this instruction prior 

to the charge to the jury?
CONSTITUTIONAL PROVISIONS INVOLVED 

The Constitutional provisions involved in this petition 
are the Fifth, Sixth and Fourteenth Amendments to the United 

States Constitution.
Amendment V. "No person shall be held to 

answer for a capital or otherwise infamous crime, 
unless on a presentment or indictment of a Grand

2



Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service 
in time of War or public danger; nor shall any 
person be subject for the same offense to be twice 
put in jeopardy of life or limb; nor shall be com­
pelled in any criminal case to be a witness 
against himself, nor be deprived of life, 
liberty, or property, without due process of 
law; nor shall private property be taken for 
public use, without just compensation."

Amendment VI. "In all criminal prose­
cutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial 
jury of the State and district wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law, 
and to be informed of the nature and cause of 
the accusation; to be confronted with the wit­
nesses against him; to have compulsory process 
for obtaining witnesses in his favor, and to 
have the Assistance of Counsel for his defense."

Amendment XIV. "Section 1. All persons 
born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citi­
zens of the United States and of the state 
wherein they reside. No state shall make or 
enforce any law which shall abridge the privi­
leges or immunities of citizens of the United 
States; nor shall any state deprive any person 
of life, liberty, or property, without due 
process of law; nor deny to any person within 
it’s jurisdiction the equal protection of the 
laws..."

STATEMENT OF FACTS
Petitioner was charged with Escape in the Second Degree, 

ORS 162.155. On September 25 and 26, 1975, petitioner stood trial. 
Petitioner did not take the stand during his trial. As part of 
his trial strategy, petitioner's counsel was careful to avoid 
any mention of the fact that petitioner would not take the witness 
stand. Petitioner's counsel made no mention of this fact in 
Voir Dire or opening and closing argument.

3



Prior to instructing the jury, the trial court met with 
counsel in chambers. At that time, the trial court informed coun­
sel that it intended to give the following instruction:

"Under the laws of this State, a 
defendant has the option to take the wit­
ness stand to testify in his or her behalf.
If a defendant chooses not to testify, such 
a circumstance gives rise to no inference 
or presumption against the defendant, and 
this must not be considered by you in de­
termining the question of guilt or inno­
cence .n
Petitioner's counsel informed the court that he 

did not want this instruction to be given. He stated that 
giving the instruction was like "waving a red flag in front 
of the jury". The trial court gave the instruction over 
petitioner's timely objection. Petitioner took exception 
to the giving of the instruction.

REASONS WHY A
WRIT OF CERTIORARI SHOULD BE ISSUED

I.
The importance of the issues raised outside of the 

facts of the specific case.
The specific issue raised in this petition is very 

narrow and it is whether or not it is reversible error for a 
trial judge to instruct a jury concerning the failure of a 
defendant to testify, when defense counsel has objected to the 
giving of this instruction prior to the giving of the instruction.

This is not a case where no objection is made prior to 
the giving of the "failure to testify" instruction, and the court

4



gives such an instruction sua sponte. This is not a case where 
the court gives such an instruction sua sponte and objection is 
made after the instruction is given. This is not a case where 
one co-defendant asks for the instruction and the other co-def­
endant objects.

The specific issue raised in this petition has been 
litigated in many state and federal jurisdictions and there is 
a split of authority in both the state and federal jurisdictions 
on this issue. Several state and federal courts have held, 
either directly or in dicta, that it is error for a court to 
instruct a jury concerning the failure of a defendant to testify 
when defense counsel has made a timely objection to the giving 
of the instruction: State cases - People v. Molano, 253 Cal App 
2d 841, 61 Cal Rptr 821 (1967); Russel v. State, 240 Ark 97, 398 
SW 2d 213 (1966); Villines v. State, 492 P2d 343 (Okla Ct of Crim 
Appeals, 1971); Gross v. State, 306 NE2d 371 (Ind. Supp., 1974); 
People v. Horrigan, 253 Cal App 2d 519, 61 Cal Rptr 403 (1967); 
State v. White, 285 A2d 832 (Me, 1972); State v. Kimball, 176 
NW2d 864 (Iowa, 1970), Federal cases - U.S. v. Smith, 392 F2d.
302 (CA4, 1968) ; Menqarelli v. U.S. Marshall, 476 F2d. 617 (CA 

9, 1973).
Several state and federal courts have held that it is 

not error for a court to instruct a jury concerning the failure 
of a defendant to testify even though defense counsel has made 
a timely objection to the giving of the instruction: State cases -
State v. Goldstein, 65 Wash. 2d 901, 400 P2d. 368 (1965), cert den

5



382 U.S. 895 (1965); Pearson v. State, 28 Md. App. 196, 343 A2d.
916 (1975); Rogers v. State, 486 SW2d. 786 (Tex Cr App 1972);
Harvey v. State, 187 So 2d 59 (Fla App 1966), cert den 386 U.S.
923 (1967); State v. Baxter, 51 Haw 57, 454 P2d. 366 (1969), 
cert den 397 U.S. 955 (1970). Federal cases - United. States v. 
Schwartz, 398 F2d. 464 (CA 7, 1968), cert den 393 U.S. 1062 (1969); 
United States v. McGann, 431 F2d 1104 (CA 5, 1970); United States 
v. Rimanich, 422 F2d 817 (CA 7 1970).

When the Oregon Supreme Court decided the case at bar 
it pointed out that it had to decide whether the giving of the 
instruction over prior objection was an invasion of constitutional 
rights "without help from the one source which could put the issue 
to rest; namely, the United States Supreme Court." State v. Lake­
side , supra., 277 Or. at 587. Since this issue arises from time to 
time in both the state and federal jurisdictions, it would be help­
ful if this court would put the issue to rest by accepting review 
of this case.

II.
Why giving the "failure to testify" instruction over 

objection of defense counsel violates the Fifth Amendment to the 
United States Constitution,

In Griffin v. California, 380 U.S. 609 (1965), the 
defendant did not testify at his trial. The prosecutor commented 
to the jury on the failure of the defendant to testify. The trial 
court instructed the jury that the defendant had a constitutional 
right not to testify but went on to say that the jury could consider



this failure to testify as evidence bearing on the question 
of whether or not he was guilty of the crime charged. This 
court held that the Fifth Amendment forbids either comment by 
the prosecution on the accused's silence or instructions by the 
court that such silence is evidence of guilt.

In People v. Molano, 253 Cal App 2d. 841, 61 Cal 
Rptr 821 (1967) an instruction identical in content to the 
instruction given in the case at bar was given over objection 
of defense counsel. The California Court of Appeals, Second 
District, Division Four held that:

"Since Griffin v. State of California,
(Apr. 1965) 380 US 609, 85 S Ct 1229, 14 L 
Ed 2d 106, either comment by the prosecution 
on the accused's silence or instructions by 
the court that such silence is evidence of 
guilt, are forbidden. Defendant contends, 
and we believe correctly so, that to give 
this instruction when he did not want it to 
be given, was tantamount to making a 'comment' 
proscribed by Griffin. The argument being that 
such an instruction highlights and emphasizes 
the fact that the accused did not take the stand.

"Particularly apt here, we believe, is the 
comment of Mr. Justice Douglas in his dissenting 
opinion in United States v. Gainey, (Mar. 1965)
380 US 63, 73 ...

'Just as it is improper for counsel to 
argue from the defendant's silence, so_ iŝ  it 
improper for the trial judge to call attention 
to the fact of defendant's silence. Indeed, 
under-18 U.S.C. Section 3481, the defendant 
is entitled as a matter of right to have the 
trial judge expressly tell the jury that it 
must not attach any importance to the defen­
dant's failure to testify; or if the defendant 
sees fit, he may choose to have no mention made 
of his silence by anyone. Bruno v. United States,
308~US 287, 60 S Ct 198, 84 L Ed 257’ [Emphasis 
added]" Id. 61 Cal Rptr at 824-825.

7



Although, as discussed below in part IV, it is often 
necessary to have the "failure to testify" instruction given to 
protect a defendant's rights, under certain circumstances, the 
giving of the instruction constitutes a "comment" on the failure 
of the defendant to testify and is as detrimental to a defendant's 
position as an illegal comment by the prosecutor about this fact.

III.
Why the giving of the "failure to testify" instruction, 

over objection, violates the Sixth Amendment to the United States 
Constitution.

In United States V. Ash, 413 U.S. 305, (1973) this
court discussed the historical background of the Sixth Amend­
ment :

"A concern of more lasting importance 
was the recognition and awareness that an 
unaided layman had little skill in arguing 
the law or coping with an intricate pro­
cedural system. The function of counsel as 
a guide to complex legal technicalities long 
has been recognized by this Court. Mr. Justice 
Sutherland's well known observations in Powell 
bear repeating here:

'Even the intelligent and educated 
layman has small and sometimes no skill 
in the science of law. If charged with 
crime, he is incapable, generally, of 
determining for himself whether the 
indictment is good or bad. He is un­
familiar with the rules of evidence.
Left without the aid of counsel he may 
be put on trial without a proper charge 
or evidence that is irrelevant to the 
issue or otherwise inadmissible. He 
lacks both the skill and knowledge 
adequately to prepare his defense even 
though he may have a perfect one. He 
requires the guiding hand of counsel 
at every step in the proceedings against



him. Without it, though he be not guilty 
he faces the danger of conviction because 
he does not know how to establish his 
innocence.' 287 U.S., at 69, 53 S. Ct., 
at 64.

"The Court frequently has interpreted the 
Sixth Amendment to assure that the 'guiding 
hand of counsel' is available to those in need 
of it's assistance . . . "  Id., 413 U.S. at 
307-308.
Later on the Court stated that:

" . . .  Mr. Justice Balck, writing for the 
Court in Johnson v. Zerbst, 304 U.S. 458, 46 2- 
463, 58 S. Ct. 1019, 1022, 82 L Ed 1461 (1938), 
spoke of this equalizing effect of the Sixth 
Amendment's counsel guarantee:

'It embodies a realistic recog­
nition of the obvious truth that the 
average defendant does not have the 
professional legal skill to protect 
himself when brought before a tri­
bunal with power to take his life or 
liberty, wherein the prosecution is 
presented by experienced and learned 
counsel'

"This historical background suggests that 
the core purpose of the counsel guarantee was 
to assure 'Assistance' at trial, when the 
accused was confronted with both the intricacies 
of the law and the advocacy of the public pro­
secutor." Id., 413 U.S. at 309.
Petitioner is indigent and had to have an attorney 

appointed to represent him so that he, a layman, might have 
the benefit of the advice of someone trained in the law at his 
trial. Petitioner's counsel decided that it would be adverse 
to petitioner's interests to have petitioner testify at his 
trial. As part of his trial strategy, petitioner made no mention 
of this fact during voir dire or opening and closing arguments. 
Petitioner's counsel made no comment on the petitioner's failure



to testify because petitioner's counsel did not want to highlight 
this point. When the trial court gave the objected to instruction, 
it called attention to the fact that petitioner did not testify 
and destroyed all the possible benefit that might have inured to 
petitioner because of the trial strategy. Additionally, had 
petitioner's counsel known that the trial court was going to 
give the "failure to testify" instruction, petitioner's counsel 
might have changed his strategy and voir dired the jury on the 
effect that not having the petitioner testify might have on each 
individual juror.

The Sixth Amendment guarantees a defendant the right 
to have counsel to advise him at his trial. One of the functions 
of an attorney is to plan a trial strategy. The selection of 
witnesses, the content of voir dire, the content of direct and 
cross examination and the content of opening and closing arguments 
are often dictated by the trial strategy. Obviously, a judge has 
a duty to interfere with a trial strategy that violates, for in­
stance, the rules of evidence. If petitioner's counsel, as part 
of his trial strategy, had sought to introduce inadmissible hearsay 
evidence, the court would have to interfere with the trial strategy 
by keeping such evidence out of the trial. However, under the 
specific facts in the case at bar, there was no rule of law which 
mandated the giving of the instruction. It makes a mockery of the 
Sixth Amendment to hold that a defendant has a right to counsel, 
but then permit a judge to overrule the advice that that counsel 
gives to a defendant, when there is no legal basis for interfering.

10



IV.
Since it is reversible error for a trial court to 

refuse to give the "failure to testify" instruction when re­
quested by defense counsel, how can it be reversible error 
for the court to give such an instruction?

Under federal law, Bruno v. United States, 308 US 287 
(1959), and the law of the State of Oregon, State v. Hale, 22 Or 
App 144, 537 P2d 1173 (1975), a defendant has an absolute right 
to have the "failure to testify" instruction given. The argument 
is frequently made that if it is reversible error for a trial 
court to refuse to give this instruction, it can not be reversible 
error to give the instruction. In State v. Baxter, supra., 454 
P2d at 367, the Hawaii Supreme Court stated that:

"We can not see how an identical instruction 
will affect a jury differently by the fact that, 
unbeknown to it, in one case there was an object­
ion and in the other there was not..."
The wording of the "failure to testify" instruction is 

not at issue here. What is at issue is the giving of the instruct­
ion at all.

Under certain circumstances, it is advantageous to 
have the trial court instruct the jury concerning the defendant's 
failure to testify. If the defendant can not take the stand for 
some reason and there is evidence in the trial that can only be 
explained by the defendant, then defense counsel would want to 
have a "failure to testify" instruction given to the jury in 
hopes that they will not hold the defendant's failure to testify 
against him.

11



Under other circumstances, it is extremely disadvan­
tageous to have a "failure to testify" instruction given.
Suppose that defendant puts on an alibi defense and produces 
several witnesses who testify that the defendant was at some 
place other than the scene of the crime at the time that the 
crime was committed. Furthermore, assume that the defendant 
has a lengthy criminal record, including convictions for the 
crime charged, and makes a bad appearance on the stand. Since 
the defendant would add nothing to the testimony of the alibi 
witnesses and would injure his cause by taking the stand, trial 
strategy would dictate that defense counsel not put defendant 
on the stand and try to call as little attention as possible to 
the defendant's failure to take the stand. If the defendant's 
witnesses supply all of the information that the defendant 
would supply had he taken the stand, the jury will probably not 
think too much of the defendant's failure to take the stand.
Under such circumstances, defense counsel would not want to 
have the failure of the defendant to take the stand highlighted 
by the giving of an instruction concerning this fact.

The giving of an identically worded "failure to testify" 
instruction can be harmful or helpful depending on the facts of 
the individual case. Defense counsel, if competent, is the 
best person to determine when the failure to testify instruction 
should be given. If defense counsel determines that the giving 
of the instruction will be detrimental to his client, it is a 
violation of both the Fifth and Sixth Amendments to the United



States Constitution for a trial judge to give that instruction 
over objection.

CONCLUSION
For the foregoing reasons, petitioner prays that a 

Writ of Certiorari issued to review the judgment rendered by 
the Oregon Supreme Court in this case.

Respectfully submitted,

Phillip M. Margolin 
610 S.W. Alder 
909 Oregon Nat’1 Bldg. 
Portland, OR 97205 
Telephone: 248-0731
Attorney for Petitioner





in  tfje Supreme Court
of tfje tHniteb States

OCTOBER TERM, 1977 

No. 76-6942

ENSIO RUBEN LAKESIDE,

v.
STATE OF OREGON,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court 
of the State of Oregon

BRIEF IN OPPOSITION

JA M E S A. REDDEN 
A tto rney  G enera l of O regon 

AL J .  LAUE 
Solicitor G eneral 

THOMAS H. DENNEY 
A ssistan t A tto rney  G eneral 

S ta te  Office B uilding 
Salem , O regon 97310 
Phone: (503) 378-4295 

C ounsel fo r R espondent





Page
Opinions Below .......................................... 1
Question Presented ............  . ..................... 1
Constitutional Provisions Involved ......................  2
Statement of the Case...................................  2
Reasons for Denying the Writ:

I. Petitioner's Fifth Amendment Claim Is Not
Substantial Enough To Warrant Review . . . . .  3

II. Petitioner's Sixth Amendment Claim Is Neither 
Properly Raised Nor Substantial Enough To 
Warrant Review ............................... 4

Conclusion.......................................  5

TABLE OF AUTHORITIES 
Cases

Frazier v. Cupp, 394 U.S. 731 (1969)..................  4

Griffin v. California, 380 U.S. 609* (1965).............  4
Other Authorities

Anno., "Accused's Failure To Testify —  Charge,"
18 A.L.R.3d 1335 (1968) . . .......................  3

TABLE OF CONTENTS

17





IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,
Petitioner, 

v.
STATE OF OREGON,

Respondent.

On Petition for a Writ of Certiorari 
to the Supreme Court of the 

State of Oregon

BRIEF FOR RESPONDENT IN OPPOSITION 

OPINIONS BELOW
The petition for certiorari herein omits the unofficial 

(Pacific Reporter) citation to the opinion of the Oregon Supreme 
Court in this case. It is 561 P .2d 612 (1977).

JURISDICTION

The decision of the Oregon Supreme Court in this matter was 
filed on March 17, 1977. A timely petition for rehearing was 
denied on April 12, 1977, and the petition for certiorari was 
filed within 9 0 days of the latter date, on June .17, 1977. The 
jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Does the giving of a jury instruction in a criminal case, 
over the defendant's objection, that no inference may be drawn 
from the fact that the defendant did not testify violate either 
the privilege against self-incrimination guaranteed by the Fifth

19



Amendment or the right to assistance of counsel guaranteed by the 

Sixth Amendment?
N.B. For the reasons set forth below, respondent does not 

concede that petitioner's Sixth Amendment claim is properly 
raised and preserved.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner's statement of the constitutional provisions 
involved in this case is accepted, with the qualification that 
respondent does not concede that petitioner's Sixth Amendment 
claim in properly raised and preserved, for the reasons set 

forth below.

STATEMENT OF THE CASE

Respondent supplements petitioner's "Statement of Facts" as 

follows.
In petitioner's trial for Escape in the Second Degree, the 

trial court instructed the jury that no inference was to be drawn 
from the fact that defendant did not testify in his own behalf, 
using the language set forth at page 4 of the petition for cer­
tiorari herein. Defendant excepted to the giving of this in­
struction as follows:

THE COURT: . . . Does the defendant have any 
further exceptions?

[DEFENSE COUNSEL]: Yes, I have one exception.
I made this in Chambers prior to the closing 

statement. I told the Court that I did not want 
an instruction to the effect that the defendant 
doesn't have to take the stand, because I felt 
that that's like waving a red flag in front of the 
jury, so I do have an exception to the instruction 
given to the effect that the defendant doesn’t 
have to take the stand, and that that should not 
be considered against him.

THE COURT: The defendant did orally request
the Court ji)st prior to instructing that the Court 
not give the usual instruction to the effect that 
there are no inferences to be drawn against the



defendant for failing to take the stand in his 
own behalf.

The Court felt that it was necessary to give 
that instruction in order to properly protect the 
defendant, and therefore the defendant may have 
his exception. (Tr. 235) .
Petitioner's brief in the Oregon Court of Appeals argued 

only that the giving of the instruction in question violated his 
Fifth Amendment right against self-incrimination, as is apparent 
from the manner in which he stated the question presented on 
appeal.

Did the trial court violate appellant's rights, 
guaranteed by the Self-Incrimination Clause of the 
Fifth Amendment to the United States Constitution, 
by instructing the jury concerning appellant's fail­
ure to testify, when appellant objected to the giv­
ing of this instruction prior to the charge to the 
jury? (Appellant's Brief, at 1).

As petitioner acknowledged in his petition for rehearing in the 
Oregon Supreme Court, he first attempted to inject a Sixth Amend­
ment claim into this case during oral argument in the Court of 
Appeals (Petition for Rehearing, at 2). Neither the opinion of 
the Court of Appeals nor the opinion of the Oregon Supreme Court 
discusses that claim, as petitioner complained in his petition 
for rehearing (Id./ at 2-3)

REASONS FOR DENYING THE WRIT

I. Petitioner's Fifth Amendment Claim Is Not Substantial 

Enough To Warrant Review.
It is true, as the petition for certiorari herein points out, 

that there is a division of authority on the question of whether 
the giving, over objection, of an instruction that no inference 
is to be drawn from the fact that the defendant in a criminal case 
has not testified in his own behalf violates the privilege against 
self-incrimination, although it appears that the majority of juris­
dictions which have considered the question hold, like Oregon, 
that it does not. See Anno., "Accused's Failure To Testify —

21



Charge," 18 A.L.R.3d 1335 (1968). If the mere fact that the 
jurisdictions of this country are divided over the question were 
sufficient to create a question substantial enough to warrant 

resolution by this Court,, the present case would seem to be a 
satisfactory one in which to resolve it. We submit, however, 
that the result reached by the Oregon Supreme Court is clearly 
the correct one and that, rather than disturbing that result, 
this Court should postpone its consideration of the question 
until it is confronted with a case holding to the contrary.

In essence, petitioner is asking this Court to extend its 
holding in Griffin v. California, 380 U.S. 609 (1965), and to say 

that the Fifth Amendment not only prohibits argument by the pro­
secution and instructions by the trial court which invite the 
jury to draw inferences adverse to a criminal defendant who does 
not testify, but also prohibits any reference to the fact that 
the defendant did not testify, even when the reference is in a 
context intended to prevent the jury from drawing such inferences. 
Such a holding would be tantamount to a holding that a jury 
which is cautioned to draw no inference from the fact that the 
defendant does not testify is not capable of following such an 
instruction, but cf. Frazier v. Cupp, 394 U.S. 731, 736 (1969), 
or at least, to a holding that the defendant has a constitutional 
right to gamble that a jury which is not cautioned to avoid 
drawing adverse inference from defendant's silence will be less 
likely to do so than one which is. Neither holding, we submit, 
is sound law, and this Court should not declare either to be the 
law.

II. Petitioner's Sixth Amendment Claim Is Neither Properly 
Raised Nor Substantial Enough To Warrant Review.

Alternatively, petitioner claims that the giving of the in­
struction that no inference may be drawn from the fact that he 
did not testify, over the objection of his attorney, constitutes

22



a denial of his Sixth Amendment right to the assistance of counsel 
(Petition, at 8-10). As pointed out in our Statement of the Case, 
above, petitioner first attempted to raise this claim on oral arg­
ument in the Oregon Court of Appeals and neither of the Oregon 
appellate courts addressed it. For this reason, we do not con­

cede that petitioner's Sixth Amendment claim is properly before 
this Court. Assuming, arguendo, that it is, the claim is without 
merit.

The gist of petitioner's Sixth Amendment argument seems to 
be that any trial court ruling which interferes with defense 
counsel's tactics or strategy deprives an accused of the effective 
assistance of counsel, at least to the extent of that interference 
and to the extent that the interference is erroneous. This reason­
ing would make a Sixth Amendment issue of every trial court ruling 
adverse to every defendant represented by counsel in a criminal 
case. It is not surprising that neither of the Oregon appellate 
courts dignified this contention with a response, if they did 
regard it as properly before them. Nor is it surprising that none 
of the cases cited in the petition for certiorari offers the 
slightest support for it.

CONCLUSION

For the above reasons, the petition for a writ of certiorari 
should be denied.

Respectfully submitted,
JAMES A. REDDEN 
Attorney General of Oregon 
AL J. LAUE 
Solicitor General 
THOMAS H. DENNEY 
Assistant Attorney General
Counsel for Respondent

September 12, 1977

23





IN THE

Supreme Court of tf)e (Hniteb
OCTOBER TERM, 1977

N o. 7 6 -6 9 4 2

ENSIO RUBEN LAKESIDE,
Petitioner,

v.

OREGON,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OREGON

REPLY BRIEF FOR PETITIONER

PHILLIP M. MARGOLIN 
Nash & Margolin 
555 Oregon Nat’l Bldg.
610 S.W. Alder 
Portland, OR 97205 
Telephone: (503) 248-0731

Court-appointed Attorney 
for Petitioner

25





TABLE OF CONTENTS

Page
CITATION x 
JURISDICTION 1 
QUESTION PRESENTED
CONSTITUTIONAL PROVISIONS INVOLVED 2 
STATEMENT OF FACTS 2 
ARGUMENT 9
CONCLUSION 3





IN THE SUPREME COURT
OF THE UNITED STATES 
October Term, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,
Petitioner,

OREGON,
Respondent.

REPLY BRIEF OF PETITIONER

CITATION TO OPINION BELOW 
See Petitioner's Opening Brief 

JURISDICTION
See Petitioner’s Opening Brief 

QUESTION PRESENTED
Is it a violation of the Self-Incrimination Clause of 

the Fifth Amendment to the United States Constitution and a vio­
lation of a defendant's Right to Counsel, guaranteed by the Sixth 
Amendment to-the United States Constitution, for a trial court to 
comment on a defendant's failure to testify at his trial, by 
giving a jury instruction concerning this fact, after a defen­
dant has made a timely objection to the giving of the instruction



prior to the charge to the jury?
CONSTITUTIONAL PROVISIONS INVOLVED 

See Petitioner's Opening Brief 
STATEMENT OF FACTS 

See Petitioner's Opening Brief 
ARGUMENT

Petitioner alleges that the trial court violated the Fifth
and Sixth Amendments to the United States Constitution by giving a
jury instruction concerning petitioner's failure to testify over
objection. On page nine of it's brief, Respondent states:

"...As petitioner acknowledged in his 
petition for rehearing in the Oregon Supreme 
Court (App. 27-23), he did not make this claim 
in his brief in the state appellate courts, but 
urged it for the first time on oral argument be­
fore the Oregon Court of Appeals. Neither that 
court nor the Oregon Supreme Court specifically 
addressed this claim, possibly because of the 
courts' rules against noticing contentions not 
fairly raised in the trial court and set forth 
in the briefs of the parties. Cf. State v. Hick- 
mann, 273 Or 358, 540 P2d 1406 (1975). For this 
reason, we do not concede that petitioner's Sixth 
Amendment claim is properly before this Court..."
Petitioner contends that his Sixth Amendment claim is 

properly before this Court. Petitioner orally notified respondent 
that he intended to present this argument prior to oral argument 
in the Oregon Court of Appeals. (AppI 28)

The Oregon Court of Appeals obviously considered peti­
tioner's Sixth Amendment claim that the trial court illegally in­
terfered with petitioner's trail strategy by giving the "failure 
to testify" instruction over objection and, though not specifically 
mentioning the Sixth Amendment, the "trial strategy" argument

30



clearly formed the basis for it's decision:
"...The defendant, however insists that 

giving the instruction over his objection un­
justifiably interfered with his trial strategy, 
i.e., to avoid mention of his failure to testify.

* * *

"Such a rule allows defense counsel full 
latitude in matters of trial strategy__" (App. 7}
The Oregon Supreme Court, in granting the respondent's

Petition for Review, informed the parties that the Oregon Supreme
Court would consider the following questions when the issue was
argued before it:

"D Whether it is reversible error for the 
trial court to give an instruction, over a criminal 
defendant's timely objection, that no inference or 
presumption affecting guilt or innocence arises 
from that defendant's failure to take the stand 
during the trial?

"2) The basis for such a rule." (App. 27)
The Oregon Supreme Court did not limit it's inquiry to 

the Fifth Amendment, but asked for any basis for a rule requiring 
reversal i.f the instruction was given over objection.

CONCLUSION
Petitioner's Sixth Amendment claim is properly before

the Court.

Respectfully submitted,

PHILLIP’*. MARGOLIN 
Attorney for Petitioner



*



IN THE

Suprem e C o u rt of tfjeU m teb  S ta tes
OCTOBER TERM, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,
P etitioner,

v.

OREGON,
R esp o n d en t.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OREGON

BRIEF OF PETITIONER

PHILLIP M. MARGOLIN 
Nash & Margolin 
555 Oregon Nat’l Bldg.
610 S.W. Alder 
Portland, OR 97205 
Telephone: (503) 248-0731

Court-appointed Attorney 
for Petitioner

33





(i)

TABLE OF CONTENTS

Page
CITATION .................................................................................... 1

JURISDICTION ............................................................................  2

QUESTION PRESENTED ..........................................................  2

CONSTITUTIONAL PROVISIONS INVOLVED ........................3
STATEMENT OF FACTS ......................     4
SUMMARY OF ARGUMENT .....................................................  5
ARGUMENT .................................................................................  7

I. THE ISSUE .......................................................   7

II. THE TRIAL COURT VIOLATED THE 
SELF-INCRIMINATION CLAUSE OF THE 
FIFTH AMENDMENT TO THE UNITED 
STATES CONSTITUTION WHEN IT GAVE 
AN INSTRUCTION TO THE JURY CON­
CERNING THE PETITIONER’S FAILURE 
TO TESTIFY AT HIS CRIMINAL TRIAL,
AFTER PETITIONER OBJECTED TO THE 
GIVING OF THIS INSTRUCTION PRIOR
TO THE CHARGE TO THE JURY ............... .............. 8

III. THE TRIAL COURT VIOLATED THE 
“ASSISTANCE OF COUNSEL” CLAUSE 
OF THE SIXTH AMENDMENT TO THE 
UNITED STATES CONSTITUTION WHEN 
IT GAVE AN INSTRUCTION TO THE 
JURY CONCERNING PETITIONER’S 
FAILURE TO TESTIFY AT HIS CRIMI­
NAL TRIAL, AFTER PETITIONER OB­
JECTED TO THE GIVING OF THIS 
INSTRUCTION PRIOR TO THE CHARGE
TO THE JURY ...............................................................14

CONCLUSION ..............................................................................21

35



TABLE OF AUTHORITIES

Constitutional Provisions Involved:
Amendment V .........................................................................passim
Amendment VI ......................................................................passim
Amendment XIV ................................    3,15

Oregon Revised Statutes:
ORS 162.155 ................................................ .............................. 1,4
Cases:
Brooks v. Tennessee, 406 U.S. 605 (1972) ..................  17,18,20

Bruno v. U.S., 308 U.S. 287 ................................................  10,12
Gedders v. U.S., 425 U.S. 80, 88 (1976) .......................  6,19,20
Griffin v. California, 380 U.S. 609 (1965) ....................  6,8,9,11
Gross v. State, 306 N.E.2d 371 (Ind. Supp., 1974) ............... 10
Herring v. New York, 422 U.S. 853 (1975)   15
Mengarelli v. U.S. Marshall, 476 F.2d 617 (CA 9,

1973)   12
People v. Hampton, 394 Mich. 437, 321 N,W.2d

655 (1975) ..............................................................................  11
People v. Horrigan, 253 Cal. App. 2d 519, 61 Cal.

Rptr. 821 (1967) ....................................................................  12

People v. Molano, 253 Cal. App. 2d 841, 61 Cal.
Rptr. 821 (1967) .............................................    9

Russell v. State, 240 Ark. 97, 309 S.W.2d 213
(1966) ......................................................................................  12

State v. Baxter, 51 Haw. 57, 454 P.2d 366 (1969) ...............  12

State v. Hale, 22 Or. App. 144, 537 P.2d 1173
(1975) ......................................................................................  12

State v. Kimball, 176 N.W.2d 864 (Iowa, 1970) ....................  11
State v. Lakeside, 25 Or. App. 539, 549 P.2d 1287

(1976) ...................................................................................... 2
State v. White, 285 A.2d 832 (Me. 1972) ...................................  12

(ii)

36



(Hi)

Page

U.S. v. Ash, 413 U.S. 305 (1973) .................... 15
U.S. v. McGann, 431 F.2d 1104 (CA 5, 1970)   12
U.S. v. Rimanich, 422 F.2d 817 (CA 7, 1970)    12
U.S. v. Schwartz, 398 F.2d 464 (CA 7, 1968) ...........................12
U.S. v. Smith, 392 F.2d 302 (CA 4, 1968) .........................   12
Villines v. State, 492 P.2d 343 (Okla. Ct. of Crim.

Appeals, 1971) ......................................................................12

37





IN THE

Supreme Court of tbe ©niteb States
OCTOBER TERM, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,
Petitioner,

v.

OREGON,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OREGON

BRIEF OF PETITIONER

CITATION TO OPINION BELOW

Petitioner was charged with Escape in the Second 
Degree, Oregon Revised Statutes, 162.155. Petitioner 
was tried on September 25 and 26, 1975, and was 
found guilty by a jury. He was sentenced on October 1, 
1975. Petitioner appealed the judgment of the trial 
court to the- Oregon Court of Appeals.

39



2

The Oregon Court of Appeals reversed petitioner’s 
conviction in S ta te  o f  O regon v. E nsio R u b e n  Lakeside, 
25 Or. App. 539, 549 P,2d 1287 (1976). The State of 
Oregon petitioned the Oregon Supreme Court for 
review of the opinion of the Court of Appeals and 
review was granted.

The Oregon Supreme Court reinstated petitioner’s 
conviction and reversed the decision of the Oregon 
Court of Appeals, with one Justice dissenting, S ta te  o f  
O regon v. Ensio  R u b e n  Lakeside, 277 Or. 569, 561 
P.2d 612 (1977). On April 12, 1977, a petition for 
rehearing was denied without opinion.

JURISDICTION

The jurisdiction of this Court is invoked under 28 
U.S.C., Section 1257(3).

QUESTION PRESENTED

Is it a violation of the Self-Incrimination Clause of 
the Fifth Amendment to the United States Constitution 
and a violation of a defendant’s Right to Counsel, 
guaranteed by the Sixth Amendment to the United 
States Constitution, for a trial court to comment on a 
defendant’s failure to testify at his trial, by giving a 
jury instruction concerning this fact, after a defendant 
has made a timely objection to the giving of this 
instruction prior to the charge to the jury?

40



3

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provisions involved in this petition 
are the Fifth, Sixth, and Fourteenth Amendments to 
the United States Constitution.

Amendment V. “No person shall be held to answer 
for a capital or otherwise infamous crime, unless 
on a presentment or indictment of a Grand Jury, 
except in cases arising in the land or naval forces, 
or in the Militia, when in actual service in time of 
War or public danger; nor shall any person be 
subject for the same offense to be twice put in 
jeopardy of his life or limb; nor shall be compelled 
in any criminal case to be a witness against 
himself, nor be deprived of life, liberty, or 
property, without due process of law; nor shall 
private property be taken for public use, without 
just compensation.”
Amendment VI. “In all criminal prosecutions the 
accused shall enjoy the right to a speedy and 
public trial, by an impartial jury of the state and 
district wherein the crime shall have been 
committed, which district shall have been pre­
viously ascertained by law, and to be informed of 
the nature of the cause of the accusation; to be 
confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his 
favor, and to have the Assistance of Counsel for 
his defense.”
Amendment XIV. “Section 1. All persons born or 
naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United 
States and of the state wherein they reside. No 
state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States; nor shall any state deprive any 
person of life, liberty, or property without due

41



4

process of law; nor deny to any person within its 
jurisdiction equal protection of the laws . .

STATEMENT OF FACTS

Petitioner was charged with Escape in the Second 
Degree, ORS 162.155. Petitioner stood trial on 
September 25 and 26, 1975. As part of his trial 
strategy, petitioner did not take the stand, and 
petitioner’s counsel was careful to avoid any mention of 
this fact in voir dire or opening and closing arguments.

Prior to instructing the jury, the trial court met with 
counsel in chambers. At that time the trial court 
informed counsel that it intended to give the following 
instruction:

“Under the laws of this State, a defendant has 
the option to take the witness stand to testify in 
his of her own behalf. If a defendant chooses not 
to testify, such a circumstance gives rise to no 
inference or presumption against the defendant, 
and this must not be considered by you in 
determining the question or guilt or innocence.”
Petitioner’s counsel informed the Court that he did 

not want the instruction read to the jury. The trial 
court gave the instruction to the jury despite this 
timely objection. [Tr. 231] Following the charge to the 
jury the following took place:

“THE COURT: Motion for mistrial will be 
denied.

“Does the defendant have any further ex­
ceptions?

“MR. MARGOLIN: Yes, I have one exception.

42



5

“I made this in chambers prior to the closing 
statement. I told the Court that I did not want an 
instruction to the effect that the defendant doesn’t 
have to take the stand, because I felt that that’s 
like waving a red flag in front of the jury, so I do 
have an exception to the instruction given to the 
effect that the defendant doesn’t have to take the 
stand, and that that should not be considered 
against him.

“THE COURT: The defendant did orally
request the Court just prior to instructing that the 
Court not give the usual instruction to the effect 
that there are no inferences to be drawn against 
the defendant for failing to take the stand in his 
own behalf.

“The Court felt that it was necessary to give 
that instruction in order to properly protect the 
defendant, therefore, the defendant may have his 
exception.” [Tr. 235]
Petitioner was convicted and appealed his case to the 

Oregon Court of Appeals which reversed his conviction 
on June 1, 1976. The Oregon Supreme Court took 
review and reversed the Oregon Court of Appeals in a 
decision filed on March 17, 1977. On October 11, 
1977, this Court granted petitioner’s Petition for Writ 
of Certiorari.

SUMMARY OF ARGUMENT

The Fifth Amendment to the United States Constitu­
tion states that a defendant in a criminal case cannot be 
compelled to be a witness against himself. This Court 
has held that it is a violation of this Fifth Amendment 
right for a prosecutor or trial judge to comment on the

43



6

failure of a defendant to testify at his trial if the 
defendant chooses to exercise his Fifth Amendment 
privilege. G riffin  v. California, 380 U.S. 609 (1965).

The Sixth Amendment to the United States Constitu­
tion guarantees the assistance of counsel for those on 
trial for a criminal charge. This Court has long 
recognized that “the role of counsel is important 
precisely because ordinarily a defendant is ill-equipped 
to understand and deal with the trial process without a 
lawyer’s guidance.” G edders v. U n ited  S ta tes, 425 U.S. 
80, 88 (1976).

One of the most important decisions a criminal 
defendant makes is the decision not to testify at his 
trial. In the case at bar, petitioner, an indigent layman, 
was appointed counsel to advise him, among other 
things, whether or not to take the stand in his defense. 
It was decided that petitioner would not testify and no 
comment was made concerning this fact in voir dire, 
opening argument or closing argument so as not to call 
attention to petitioner’s failure to testify.

Every criminal case has a different set of facts. The 
trial judge sees these facts in the sterile atmosphere of 
the courtroom. Defense counsel lives with the case and 
is privy to information, for instance attorney-client 
communications, of which the trial judge is never 
aware. Competent trial counsel is much better equipped 
to decide trial strategy than a trial judge who enters 
the case only on the day of trial. When petitioner s 
counsel asked the trial court not to give the “failure to 
testify” instruction he was providing the assistance of 
counsel of which the Sixth Amendment speaks. 
Petitioner’s counsel concluded that giving the “failure 
to testify” instruction would be “like waving a red flag

44



7

in front of the jury” and, as such, would constitute the 
type of comment on petitioner’s failure to testify that 
is constitutionally prohibited.

When the trial court gave the instruction it interfered 
with the guidance provided by counsel and it violated 
petitioner’s Right to Counsel guaranteed by the Sixth 
Amendment to the United States Constitution.

The giving of the instruction constituted a comment 
on the exercise of petitioner’s right to be free from 
Self-Incrimination and it violated a right guaranteed to 
petitioner by the Fifth Amendment to the United 
States Constitution.

ARGUMENT

I.

THE ISSUE

The issue raised by petitioner in this case is very 
narrow. The issue is whether it is a violation of the 
Self-Incrimination Clause of the Fifth Amendment to 
the United States Constitution and the Right to 
Counsel guaranteed by the Sixth Amendment to the 
United States Constitution for a trial judge to instruct 
the jury concerning the failure of a defendant to testify 
when defense counsel has objected to the giving of this 
instruction prior to the charge to the jury.

This is not a case where no objection is made prior 
to the giving of the “failure to testify” instruction and 
the Court gives such an instruction sua spon te . This is 
not a case where the Court gives such an instruction sua

45



8

sp o n te  and objection is made after the instruction is 
given. This is not a case where one co-defendant asks 
for the instruction and the other co-defendant objects.

II.

THE TRIAL COURT VIOLATED THE 
SELF-INCRIMINATION CLAUSE OF THE 
FIFTH AMENDMENT TO THE UNITED 
STATES CONSTITUTION WHEN IT GAVE 
AN INSTRUCTION TO THE JURY CON­
CERNING THE PETITIONER’S FAILURE 
TO TESTIFY AT HIS CRIMINAL TRIAL, 
AFTER PETITIONER OBJECTED TO THE 
GIVING OF THIS INSTRUCTION PRIOR 
TO THE CHARGE TO THE JURY.

The Fifth Amendment to the United States Constitu­
tion states that:

“No person shall be . . . compelled in any 
criminal case to be a witness against himself . . .”
In G riffin  v. California, 380 U.S. 609 (1965), the 

defendant did not testify at trial. The prosecutor 
commented to the jury on the failure of the defendant 
to testify. The trial judge instructed the jury that the 
defendant had a constitutional right not to testify but 
went on to say that the jury could consider this failure 
to testify as evidence bearing on the question of 
whether or not he was guilty of the crime charged. This 
Court reversed the defendant’s conviction holding that 
the Fifth Amendment to the United States Constitution 
forbids either comment by the prosecution on the 
accused’s silence or instructions by the Court that such 
silence is evidence of guilt.

46



9

Several courts have reached the conclusion, either in 
a holding or in dicta, that it is error for a court to 
instruct a jury concerning the failure of a defendant to 
testify when defense counsel has made a timely 
objection to the giving of the instruction. In P eople v. 
M olano, 253 Cal. App. 2d 841, 61 Cal. Rptr. (1967), 
an instruction identical in content to the instruction 
given in the case at bar was read to the jury over 
objection of defense counsel. The California Court of 
Appeals, Second District, Division Four held that:

“Since G riffin  v. S ta te  o f  California, (Apr. 
1965) 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 
106, either comment by the prosecution on the 
accused’s silence or instructions by the court that 
such silence is evidence of guilt, are forbidden. 
Defendant contends, and we believe correctly so, 
that to give this instruction when he did not want 
it to be given was tantamount to making a 
‘comment’ proscribed by G riffin. The argument 
being that such an instruction highlights and 
emphasizes the fact that the accused did not take 
the stand.

“Particularly apt here, we believe, is the 
comment of Mr. Justice Douglas in his dissenting 
opinion in U nited  S ta tes  v. G ainey, (Mar. 1965) 
380 U.S. 63, 73 . . .

‘Just as it is important for counsel to argue 
from the defendant’s silence, so is it im proper  
fo r  th e  trial jud g e  to  call a tte n tio n  to  th e  fa c t  
o f  d e fe n d a n t’s silence. Indeed, under 18 U.S.C. 
Section 3481, the defendant is entitled as a 
matter of law to have the trial judge expressly 
tell the jury that it must not attach any 
importance to the defendant’s failure to testify; 
or i f  the  d e fe n d a n t sees f i t ,  he m ay choose to  
have n o  m e n tio n  m ade o f  his silence b y  anyone.

47



10

B runo  v. U n ited  S ta tes, 308 U.S. 287, 60 S. Ct.
198, 84 L. Ed. 257’ [Emphasis added]” Id., 61
Cal. Rptr. at 824-825.

In Gross v. S ta te , 306 N.E.2d 371 (1974) the Indiana 
Supreme Court reversed an armed robbery conviction 
when the trial court gave the “failure to testify” 
instruction over objection of defense counsel. That 
court held:

“The decision to remain silent is an often used 
trial tactic. For one reason or another, the accused 
and his counsel decide that the accused’s interests 
will best be served by exercising Fifth Amendment 
prerogatives. In order for the privilege to be fully 
utilized, it is essential that no aspersion whatsoever 
be cast upon the accused for his failure to testify. 
Thus, it is necessary to closely regulate all judicial 
(as well as prosecution) statements regarding the 
accused’s silence.

“We .do not believe that all such judicial 
comments are violative of Fifth Amendment rights. 
However, we do believe that the accused should 
request any instruction which requires the jury not 
to draw negative inferences from an accused’s 
silence or co n se n t (either expressly or impliedly) 
to the giving of the instruction. If, as a trial tactic, 
the defense determines that such an instruction 
would assist its case, he may request the judge to 
so instruct. Furthermore if the judge sua sp o n te  
offers to give the instruction, and the defense fails 
to object, the defense will be deemed to have 
consented to its submission. However, if the judge 
states his intentions to submit the instruction and 
the defense does object, the giving of the 
instruction constitutes an invasion of Fifth Amend­
ment rights and judicial error.” Id., at 372-373

48



11

In S ta te  v. K im b a ll, 176 N.W.2d 864 (1970) the 
Iowa Supreme Court reversed for reasons unrelated to 
this appeal. However, the court did discuss the issue 
raised here.

“It is not claimed the instruction given is an 
erroneous statement of the law. It is claimed to be 
prejudicial because it calls the jury’s attention to 
defendant’s failure to take the stand.

* * *

“We must recognize, however, that the in­
struction is a comment on defendant’s failure to 
testify even though it is supposedly for defendant’s 
benefit and is designed to keep the jury from 
speculating on the reasons for his failure to take 
the stand and drawing improper inferences there­
from. There are those who believe the instruction 
is more harmful than helpful and regardless of how 
favorably to the accused the instruction may be 
worded it may inadvertently cause the jurors to 
consider certain adverse inferences which would 
not otherwise have entered their minds.

“Because of the divergent opinions in this 
sensitive area and as the giving of even a 
cautionary instruction favorable to defendant may 
violate the spirit of Griffin v. State of California, 
supra., we believe it is advisable for us to take a 
definitive position on this issue. We now hold that 
such instruction should not be given in any future 
trial unless it is requested by defendant, and that 
it would be considered error if it is given, absent 
such request, in any trial started after the date this 
opinion is filed.” Id., at 869.
Other cases have held, without discussing the Fifth 

Amendment, that it is reversible error for a court to 
give the instruction over objection: People v. H am pton ,

49



12

394 Mich. 437, 321 N.W.2d 655 (1975); R u sse ll v. 
S ta te , 240 Ark. 97, 398 S.W.2d 213 (1966); Villines v. 
S ta te , 492 P.2d 343 (Okla. Ct. of Crim. Appeals 1971).

See also, S ta te  v. W hite, 285 A.2d 832 (Me. 1972); 
U nited  S ta tes  v. S m ith , 392 F.2d 302 (CA 4, 1968); 
M engarelli v. U n ited  S ta tes  M arshall, 476 F.2d 617 (CA 
9, 1973); P eople v. H orrigan, 253 Cal. App. 2d 519, 61 
Cal. Rptr. 403 (Ct. of App., 4th Dist., Division 2, 
1967).

Under Federal law, B runo  v. U n ited  S ta tes, 308 U.S. 
287 (1959) and the law of the State of Oregon, S ta te  v. 
Hale, 22 Or. App. 144, 537 P.2d 1 173 (1975) a 
defendant has an absolute right to have the “failure to 
testify” instruction given if he requests it. Several 
courts which have held contrary to petitioner’s position 
have done so under the mistaken belief that the 
instruction is always helpful rather than prejudicial to a 
defendant, U nited  S ta tes  v. S ch w a rtz , 398 F.2d 464, 
469 (CA 7, 1968) cert. den. 393 U.S. 1062 (1969); 
U nited  S ta tes  v. R im a n ich , 422 F.2d 817, 818 (CA 7, 
1970); U nited  S ta tes  v. M cG ann, 431 F.2d 1104, 1109 
(CA 5, 1970), or because the court “cannot see how an 
identical instruction will affect the jury differently by 
the fact that unbeknown to it, in one case there was an 
objection and in the other there was not” , S ta te  v. 
B axter, 51 Haw. 57, 454 P.2d 366, 367 (1969).

The wording of the instruction is not at issue here. 
Prejudice arises when the instruction is read in a 
situation where it should not be read, thus calling 
attention to the fact that defendant has stood mute. 
Each criminal case has a different set of facts. Under 
certain circumstances it is advantageous to have the trial 
court instruct the jury concerning the defendant’s

50



13

failure to testify. If the defendant can not take the 
stand for some reason and there is evidence in the trial 
that can only be explained by the defendant, then 
defense counsel would want to have a “failure to 
testify” instruction given to the jury in hopes that they 
will not hold the defendant’s failure to testify against 
him.

Under other circumstances, it is extremely disad­
vantageous to have a “failure to testify” instruction 
given. Suppose that defendant puts on an alibi defense 
and produces several witnesses to testify that the 
defendant was at some place other than at the scene of 
the crime at the time that the crime was committed. 
Furthermore, assume that the defendant has a lengthy 
criminal record, including convictions for the crime 
charged, and makes a bad appearance on the stand. 
Since the defendant would add nothing to the 
testimony of the alibi witnesses and would injure his 
cause by taking the stand, trial strategy dictates that 
defense counsel not put defendant on the stand and try 
to call as little attention as possible to defendant’s 
failure to take the stand. If the defendant’s witnesses 
supply all the information that the defendant would 
supply had he taken the stand, the jury will probably 
not think too much of the defendant’s failure to take 
the stand. Under such circumstances, a defense counsel 
would not want to have the failure of the defendant to 
take the stand highlighted by the giving of an 
instruction concerning this fact. Instructing the jury 
under these circumstances amounts to waving a red flag 
in front of the jury concerning the fact that the 
defendant has failed to give his side of the story.

51



14

The giving of an identically worded “failure to 
testify” instruction can be harmful or helpful depending 
on the facts of the individual case. Defense counsel, if 
competent, is the best person to determine when the 
instruction would be helpful and when it would be 
prejudicial. If a judge gives the instruction after 
objection in a case where giving it would be prejudicial, 
giving the instruction constitutes a “comment” on the 
failure of the defendant to testify and is as harmful to 
a defendant’s position as an illegal comment by the 
prosecutor about this fact.

III.

THE TRIAL COURT VIOLATED THE “AS­
SISTANCE OF COUNSEL” CLAUSE OF 
THE SIXTH AMENDMENT TO THE 
UNITED STATES CONSTITUTION WHEN 
IT GAVE AN INSTRUCTION TO THE 
JURY CONCERNING PETITIONER’S 
FAILURE TO TESTIFY AT HIS CRIMINAL 
TRIAL, AFTER PETITIONER OBJECTED 
TO THE GIVING OF THIS INSTRUCTION 
PRIOR TO THE CHARGE TO THE JURY.

The Sixth Amendment to the United States Constitu­
tion states that:

“In all criminal prosecutions, the accused shall 
enjoy the right . . .  to have the Assistance of 
Counsel for his defense.”

“The decisions of [the United States Supreme 
Courtj have not given to [the constitutional 
provisions of the Sixth Amendment] a narrow 
literalistic construction. More specifically, the right

52



15

to the Assistance of Counsel has been understood 
to mean that there can be no restriction upon the 
function of counsel in defending a criminal 
prosecution in accord with the traditions of the 
adversary fact finding process that has been 
constitutionalized in the Sixth and Fourteenth 
Amendments . . . the right to Assistance of Counsel 
has thus been given a meaning that ensures to the 
defense in a criminal trial the opportunity to 
participate fully and fairly in the adversary fact 
finding process.” H erring v. N ew  Y ork, 422 U.S. 
853, 857-858 (1975)
In U n ited  S ta tes  v. A sh , 413 U.S. 305 (1973), this 

Court discussed the historical background of the Sixth 
Amendment:

“A concern of more lasting importance was the 
recognition and awareness that an unaided layman 
had little skill in arguing the law or coping with an 
intricate procedural system. The function of 
counsel as a guide through complex legal technical­
ities long has been recognized by this court. Mr. 
Justice Sutherland’s well-known observations in 
[Powell v. Alabama, 287 U.S. 45 (1932)] bear 
repeating here:

‘Even the intelligent and educated layman has 
small and sometimes no skill in the science of 
the law. If charged with crime he is incapable, 
generally, of determining for himself whether 
the indictment is good or bad. He is unfamiliar 
with the rules of evidence. Left without the aid 
of counsel he may be put on trial without a 
proper charge and convicted upon incompetent 
evidence, or evidence irrelevant to the issue or 
otherwise inadmissible. He lacks both the skill 
and knowledge adequately to prepare his 
defense, even though he has a perfect one. He 
requires the guiding hand of counsel at every

53



16

step of the proceedings against him. Without it, 
though he be not guilty, he faces the danger of 
conviction because he does not know how to 
establish his innocence.’ 287 U.S., at 69.
“The Court frequently has interpreted the Sixth 

Amendment to assure that the ‘guiding hand of 
counsel’ is available to those in need of its 
assistance . . ” Id., at 307-308
Later on this Court stated that:

“ . . . Mr. Justice Black, writing for the Court in 
Jo h n so n  v. Z erbst, 304 U.S. 458, 462-463 (1938), 
spoke of this equalizing effect of the Sixth 
Amendment’s counsel guarantee:

‘It embodies a realistic recognition of the 
obvious truth that the average defendant does 
not have the professional legal skill to protect 
himself when brought before a tribunal with 
power to take his life or liberty, wherein the 
prosecution is presented by experienced and 
learned counsel.’
“This historical background suggests that the 

core purpose of the counsel guarantee is to assure 
‘Assistance’ at trial, when the accused was 
confronted with both the intricacies of the law 
and the advocacy of the public prosecutor.” Id., at 
309
Petitioner, an indigent layman, had to have counsel 

appointed so that he might have the benefit of the 
advice of someone trained in the law at his trial. One of 
the most important decisions a criminal defendant 
makes is the decision not to testify at his trial. 
Petitioner, with the help of his counsel, decided that it 
would be adverse to his interests to testify at his trial. 
As part of his trial strategy, no comment was made 
concerning petitioner’s failure to take the stand in voir

54



17

dire and opening or closing arguments so as not to 
highlight this fact.

Every criminal case has a different set of facts. A 
trial judge sees these facts in the sterile atmosphere of 
the courtroom. Defense counsel lives with a case and is 
privy to information, for instance attorney-client 
communications, of which the trial judge is never 
aware. Competent trial counsel is much better equipped 
to decide trial strategy than a trial judge who enters the 
case for the first time on the day set for trial. When the 
trial court gave the objected to instruction, it called 
attention to the fact that petitioner had not testified 
and destroyed all of the possible benefits that might 
have enured to petitioner because of his trial strategy. 
Additionally, had petitioner’s counsel known that the 
trial court was going to “comment” on his client’s 
failure to testify, he might have changed his strategy 
and voir dired the jury on the effect that petitioner’s 
not testifying would have on its deliberation. He might 
also have commented on this fact in his opening and 
closing statements.

In B ro o ks v. Tennessee, 406 U.S. 605 (1972) this 
Court held that a Tennessee statute that required a 
defendant in a criminal case to testify before any other 
witness for the defense if he was to testify at all was 
unconstitutional because it restricted the right of 
counsel to decide whether, and when, the accused 
should take the stand during his trial. In arriving at that 
decision, this Court stated:

“Whether the defendant is to testify is an
important tactical decision as well as a matter of 

' constitutional right. By requiring the accused and
his lawyer to make that choice without an

55



18

opportunity to evaluate the actual worth of their 
evidence, the statute restricts the defense — 
particularly counsel — in the planning of its case. 
Furthermore, the penalty for not testifying first is 
to keep the defendant off the stand entirely, even 
though as a matter of professional judgment his 
lawyer might want to call him later in the trial. 
The accused is thereby deprived of the ‘guiding 
hand of counsel’ in the timing of this critical 
element of his defense. While nothing we say here 
otherwise curtails in any way the ordinary power 
of a trial judge to set the order of proof, the 
accused and his counsel may not be restricted in 
deciding whether, and when in the course of 
presenting his defense, the accused should take the 
stand.” Id., at 612-614
In the case at bar, we are dealing with another 

important tactical decision concerning the same consti­
tutional right discussed in B rooks. In B ro o ks, the 
question was when or whether the defendant should 
testify. In this case, the question for counsel is, once a 
defendant has decided to exercise the right not to 
testify, how best to deal with the jury concerning this 
fact. In B rooks, this court decided that trial judges 
ordinarily have the power to set the order of proof but, 
because an important constitutional consideration was 
present, the trial judge did not have the power to 
interfere with a trial strategy decision concerning 
whether or when the defendant would take the stand. 
In the case at bar, because of the constitutional 
considerations involved, this Court should hold that the 
trial judges power to decide how to instruct the jury 
should not extend to situations where a defendant and 
his attorney have decided, as a matter of strategy, that 
no instruction concerning the defendant’s exercise of

56



19

his Fifth Amendment constitutional right not to testify 
should be given.

In G edders v. U n ited  S ta tes, 425 U.S. 80 (1976) this 
Court concluded that a trial court’s order directing a 
defendant not to consult with his attorney during a 
regular overnight recess, called while the defendant was 
on the stand as a witness and shortly before 
cross-examination was to begin, deprived the defendant 
of the assistance of counsel guaranteed him by the 
Sixth Amendment. In its opinion, this Court said:

“The judge’s power to control the progress and, 
within the limits of the adversary system, the 
shape of the trial includes broad power to 
sequester witnesses before, during and after their 
testimony . . .” Id., at 87
However, this Court concluded:

“But the petitioner was not simply a witness; he 
was also the defendant . . .

“The recess at issue was only one of many 
called during a trial that continued over, ten 
calendar days. But it was an overnight recess, 
seventeen hours long. It is common practice during 
such recesses for an accused and counsel to discuss 
events of the day’s trial. Such recesses are often 
times of intensive work, with tactical decisions to 
be made and strategies to be reviewed. The lawyer 
may need to obtain from his client information 
made relevant by the day’s testimony, or he may 
need to pursue inquiry along lines not fully 
explored earlier. At the very least, the overnight 
recess during trial gives the defendant a chance to 
discuss with counsel the significance of the day’s 
events. Our cases recognize that the role of counsel 
is important precisely because ordinarily a de­
fendant is ill-equipped to understand and deal with

57



20

the trial process without a lawyer’s guidance.” Id., 
at 88-89

. . To the extent that conflicts remain be­
tween the defendant’s right to consult with his 
attpmey during a long overnight recess in the trial, 
and- the prosecutor’s desire to cross-examine the 
defendant without the intervention of counsel, 
with the risk of improper ‘coaching,’ the conflict 
must, under the Sixth Amendment be resolved in 
favor of the right to the assistance and guidance of 
counsel. Brooks v. Tennessee, 406 U.S. 605 
(1972)” Id., at 91
In B rooks, this Court held that there are limits on 

the trial judge’s ordinary power to control the order of 
proof. In Gedders, this Court held that there are limits 
on the trial judge’s ordinary power to sequester 
witnesses. The factor in Gedders, and one of the factors 
in B rooks, that led to this Court’s decision in those 
cases was the existence of a situation where the exercise 
of the ordinary powers of the trial court interfered with 
a defendant’s Sixth Amendment right to have the 
assistance of counsel in plotting trial strategy.

It would make no sense for this Court to hold in 
G edders that the right to consult with counsel is so 
important that a conviction must be reversed to 
preserve it and then rule in the case at bar that after 
the constitutionally protected consultation has occurred, 
a trial judge is free to interfere with the strategy arrived 
at when there is no legal basis for doing so and when 
the strategy concerns something as important as the 
exercise of the Fifth Amendment protection against 
Self-Incrimination.

58



21

IV.

CONCLUSION

For all the foregoing reasons, petitioner asks the 
Court to reverse petitioner’s conviction.

Respectfully submitted,

PHILLIP M. MARGOLIN
A tto r n e y  fo r  P e titio n er

59





3n tfje Supreme Court
of tfje Unite!) States

OCTOBER TERM, 1977

No. 76-6942

ENSIO RUBEN LAKESIDE,

v.
STATE OF OREGON,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court 
of the State of Oregon

BRIEF FOR RESPONDENT

JA M ES A. REDDEN 
A ttorney G eneral of Oregon 

AL J .  LAUE 
Solicitor G eneral 

THOMAS H. DENNEY 
A ssistan t A ttorney G eneral 

S ta te  Office B uilding 
Salem , O regon 97310 
Phone: (503) 378-4295 

C ounsel fo r R espondent

61





TABLE OF CONTENTS

Opinions Below ...............................
Jurisdiction ......................................
Question Presented .........................
Constitutional Provisions Involved
Statement of Facts ..........................
Summary of Argument .......... .
Argument .........................................
Conclusion ........................................

Page
1

1
1

1

2
2
3

11

TABLE OF AUTHORITIES 
Cases Cited

Brooks v. Tennessee, 406 U.S. 605 (1972) .............  10
Bruno v. United States, 308 U.S. 287

(1939)........................................................  2, 3, 4, 5, 7
Bruton v. United States, 391 U.S. 123 (1968) .... . 7
Frazier v. Cupp, 394 U.S. 731 (1969) ...................... 8
Gedders v. United States, 425 U.S. 80 (1976) ........ 10
Griffin v. California, 380 U.S. 609 (1965) ......... 2, 5, 6
State v. Hickmann, 273 Or. 358, 540 P.2d

1406(1975).............. .......................... .................. 9

Statutes
18 U.S.C. § 3481 (former 28 U.S.C. § 632) .............  3 ,5

63





In the Supreme Court 
of the United States

OCTOBER TERM, 1977 

No. 76-6942

ENSIO RUBEN LAKESIDE,
. Petitioner,

v.
STATE OF OREGON,

Respondent.

On Writ of Certiorari to the Supreme Court 
of the State of Oregon

BRIEF FOR RESPONDENT

OPINIONS BELOW
Petitioner’s statement is accepted.

JURISDICTION  
Petitioner’s statement is accepted.

QUESTION PRESENTED  
Does the giving of a jury instruction in a criminal 

case, over the defendant’s objection, that no inference 
may be drawn from the fact that the defendant did not 
testify  violate either the privilege against self­
incrimination guaranteed by the Fifth Amendment or 
the right to assistance of counsel guaranteed by the 
Sixth Amendment?
CONSTITUTIONAL PROVISIONS INVOLVED 

Petitioner’s statement is accepted.

65



2

STATEMENT OF FACTS
Petitioner’s statement of facts is accepted.

SUMMARY OF ARGUMENT
This Court has previously indicated, in Bruno v. 

United States, 308 U.S. 287 (1939), that the giving of a 
jury instruction that no inference is to be drawn from 
the fact that the accused in a criminal case did not 
testify does not violate the privilege against self­
incrimination, and that whether or not such an in­
struction shall be given is not a question of Constitu­
tional dimensions. Nothing in Griffin v. California, 
380 U.S. 609 (1965), suggests otherwise, and this 
Court should so hold expressly. To hold otherwise 
suggests an unwarranted lack of faith in the jury’s 
ability to draw no inference from the accused’s silence 
and unnecessarily diminishes the function of the trial 
judge, by removing from him, and giving to the 
accused, the right to determine how the jury should be 
instructed on a particular subject.

Assuming, arguendo, that petitioner’s S ixth  
Amendment claim is properly before the Court, it 
should be rejected. The accused’s Constitutional right 
to have the assistance of counsel in formulating and 
exercising his trial strategy does not extend so- far as 
to give him total control over the manner in which the 
jury is to be instructed concerning the consequences of 
that strategy, and it should not be so extended here.

66



3

ARGUMENT
I

Respondent has relatively little to add to the 
extensive opinion of the Oregon Supreme Court in this 
case, rejecting petitioner’s claim that the Self- 
Incrimination Clause of the Fifth Amendment entitles 
the accused in a criminal case to prevent the trial 
judge from instructing the jury to draw no inference of 
guilt or innocence from the fact that the accused did 
not testify, even though the judge believes the instruc­
tion necessary. However, some additional argument 
may be in order concerning the two previous decisions 
of this Court which bear most directly on the issue.

In Bruno v. United States, 308 U.S. 287 (1939), the 
Court held that the accused in a federal criminal case 
is entitled, upon request, to have the jury instructed, 
in substance, that no inference is to be drawn against 
him from the fact that he did not testify. While it 
appears that counsel for Bruno argued that such an 
instruction was required not only under federal stat­
ute, but also under the Fifth Amendment (see 308 U.S. 
at 288), the Court’s opinion seems to be based solely on 
its construction of the statute (then 28 U.S.C. § 632, 
now 18 U.S.C. § 3481) making the defendant in a 
federal criminal case a competent witness in his own 
behalf. And while the Government argued that such 
an instruction was properly refused, because if given,

67



4

it would have prejudiced Bruno by calling the jury’s 
attention to the fact that he had not testified (see 308 
U.S. at 290), the Court, speaking through Mr. Justice 
Frankfurter, said (a) that the defendant "should be 
allowed to make his own choice [of whether or not to 
assume that risk] when an Act of Congress authorizes 
him to choose” (308 U.S. at 294), and (b) that the Court 
was not prepared to make

"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.’ ” {Id.).

We note in passing that, unlike the instruction 
requested in Bruno,1 the instruction given in the 
present case does not use the word "failure,” or any 
similar verbiage which arguably might suggest that 
there is a duty on the part of the accused which he has 
somehow "failed” to discharge. Instead, it speaks of an 
"option” which the defendant may or may not exercise 
as he "chooses” (see Pet. Br. 4; App. 4), and thus would 
appear to be more neutrally worded, and therefore 
preferable, to the precise instruction considered in 
Bruno.

1 "The fa ilu re  of any defendant to tak e  th e  w itness stand  and testify  in 
h is own behalf, does not create any presum ption against him; th e  ju ry  is 
charged th a t  i t  m ust not perm it th a t  fact to w eigh in  th e  slightest degree 
against any such defendant, nor should th is  fact en te r into th e  discussions or 
deliberations of the  ju ry  in  any m anner.” 308 U.S. a t  292.

68



5

More importantly, we submit that, in the context of 
the present case, Bruno suggests, if it does not hold, 
that (a) the giving of an instruction that no inference 
is to be drawn from the fact that an accused did not 
testify cannot be said to infringe upon the privilege 
against self-incrimination, because it should not be 
assumed that a jury is incapable of following such an 
instruction, and Ob) the extent to which the accused 
may have control over whether or not such an instruc­
tion shall be given is also not a matter of Constitution­
al right, but a matter which is subject to regulation, 
either by the courts of a particular jurisdiction or by a 
statute thereof, such as present 18 U.S.C. § 3481.

In Griffin v. California, 380 U.S. 609 (1965), the 
Court, speaking through Mr. Justice Douglas, held 
that

"the Fifth Amendment, in its direct application 
to the Federal Government, and in its bearing on 
the States by reason of the Fourteenth Amend­
ment, forbids either comment by the prosecution on 
the accused’s silence or instructions by the court 
that such silence is evidence of guilt.” 380 U.S. at 
615.

The Court expressly noted that it was reserving 
decision

"on whether an accused can require, as in Bruno 
v. United States, 308 U.S. 287, that the jury be 
instructed that his silence must be disregarded.” 
(Id. at n. 6).

Necessarily, it would seem, the Court also reserved

69



6

decision on the question of whether the accused can, as 
a matter of Constitutional right, prevent such an 
instruction from being given.

The resolution of petitioner’s Fifth Amendment 
claim in the present case depends, it would seem, upon 
the breadth to be given to the Court’s holding in 
Griffin. If, as some courts have reasoned (we think 
correctly), Griffin holds, in this context, only that the 
Fifth Amendment prohibits the giving of an instruc­
tion which tells the jury that they may infer guilt from 
the accused’s silence, an instruction which tells the 
jury to draw no such inference is not only proper, but 
even beneficial to the accused. If, on the other hand, 
Griffin is to be understood broadly, as giving the 
fullest possible meaning to the accused’s privilege 
against self-incrimination, it can be argued that Grif­
fin confers upon the accused the right to decide 
whether or not any mention should be made, in any 
context, of his failure to testify. We submit that the 
latter view is not sound Constitutional doctrine and 
should not be adopted by this Court. In doing so, we 
hasten to point out that we are not arguing the 
wisdom, as a matter of any given jurisdiction’s policy, 
of giving the accused his choice as to whether or not to 
have the jury instructed that no inference should be 
drawn from his silence. We are only arguing that such 
a policy is not mandated by the Constitution.

70



7

At bottom, the view that the privilege against 
self-incrimination confers upon the accused the right 
to decide whether or not a jury instruction shall be 
given concerning his failure to testify necessarily rests 
upon the premise, whether spoken or unspoken, that 
any instruction which calls the jury’s attention to the 
fact that the accused has not testified, no matter how 
favorably to him the instruction may be worded, may 
cause the jury to draw inferences adverse to him, and 
that the accused in any particular case is therefore 
entitled, as a matter of Constitutional right, to decide 
whether the instruction should be given.

This premise should not be adopted. Viewed from 
one standpoint, it expresses a lack of trust in the jury 
system that has seldom been acknowledged openly by 
any court. It assumes that a jury cannot, or will not 
follow an instruction given to it. The suggestion that 
such an assumption is applicable to the instruction 
challenged in this case was, we submit, explicitly 
rejected by this Court in Bruno v. United States, supra, 
and we submit that the Court should not adopt it now. 
While this Court has doubted, since Bruno was de­
cided, that a jury can follow an instruction to consider 
certain evidence as bearing on the guilt of one co­
defendant, but disregard that evidence as to another,2 
its subsequent decision holding that a jury can follow

2 Bruton v. United States, 391 U.S. 123 (1968).

71



8

an instruction that the statements of counsel are not 
evidence and should therefore be disregarded3 is more 
in accord with the basic faith in the jury on which our 
judicial system rests. A similar holding is in order 
here.

Viewed from another standpoint, a holding that 
the Fifth Amendment entitles the defendant or his 
counsel, and no one else, to decide whether or not the 
jury should be instructed concerning the accused’s 
failure to testify would remove from the trial judge a 
portion of his function as a neutral arbiter and give it 
to one of the two sides contending against each other 
as adversaries. We submit that diminishing the func­
tion of the trial judge is not desirable as a matter of 
general policy, and that the need for doing so in this 
specific area has not been demonstrated by petitioner.

II
In addition to his Fifth Amendment claim , 

petitioner argues that the Right-to-Counsel Clause of 
the Sixth Amendment guarantees the accused in a 
criminal case, or his counsel, the right to decide, as a 
matter of trial strategy, not only whether or not the 
accused will testify, but also whether or not the jury 
should be instructed concerning the accused’s failure 
to testify, and that any action taken by the trial judge 
contrary to the accused’s desires on the latter point

3 Frazier v. Cupp, 394 U.S. 731, 735 (1969).

72



9

therefore interferes with the accused’s Constitutional­
ly protected right to counsel. As petitioner acknowl­
edged in his petition for rehearing in the Oregon 
Supreme Court (App. 27-28), he did not make this 
claim in his brief in the state appellate courts, but 
urged it for the first time on oral argument before the 
Oregon Court of Appeals. Neither that court nor the 
Oregon Supreme Court specifically addressed this 
claim, possibly because of the courts’ rules against 
noticing contentions not fairly raised in the trial court 
and set forth in the briefs of the parties. Cf. State v. 
Hickmann, 273 Or. 358, 540 P.2d 1406 (1975).4 For 
this reason, we do not concede that petitioner’s Sixth 
Amendment claim is properly before this Court. In 
any event, however, the claim should be rejected.

The gist of petitioner’s Sixth Amendment argu­
ment seems to be that any trial court ruling which 
interferes with defense counsel’s tactics or strategy 
deprives the accused of the effective assistance of 
counsel, to the extent of that interference and to the 
extent that the interference is erroneous. This reason­

4 In  H ickm ann, the  S ta te  appealed from an  order suppressing evidence. 
The court of appeals vacated the  order and rem anded the  case to the  tria l 
court for findings of fact concerning w hether or not defendant consented to 
th e  police en try  into h is home, a  ground not relied upon by th e  S ta te  as a 
basis for upholding the  search in  e ither the  tr ia l court or the  court of appeals. 
The suprem e court reversed, on th e  ground th a t, except where im portant 
considerations of public policy m ay be involved, a  case on appeal should be 
heard  on the  sam e theory as th a t  upon which it was presented in  the  court 
below.

7.3



10

ing would make a Sixth Amendment issue of every 
trial court ruling adverse to every defendant repre­
sented by counsel in a criminal case.

Such is not the law, and neither of the cases of this 
Court on which petitioner primarily relies for this 
proposition supports such a rule. It is one thing to 
interfere with an accused’s right to choose when, and 
if, to testify, as did the statute struck down in Brooks 
v. Tennessee, 406 U.S. 605 (1972), or with an attorney’s 
right to confer with his client, as did the judge’s order 
condemned in Gedders v. United States, 425 U.S. 80 
(1976). It is quite another to make the accused or his 
counsel, rather than the judge, the arbiter of how the 
consequences of the accused’s choice of trial strategy 
are to be explained to the jury, or otherwise dealt with 
in the courtroom. The Right-to-Counsel Clause of the 
Sixth Amendment does not extend to the latter, and 
should not be so extended under the circumstances of 
this case.

74



11

CONCLUSION
For the above reasons, the judgment of the 

Supreme Court of the State of Oregon should be 
affirmed.

Respectively submitted,
JAMES A. REDDEN 

Attorney General of Oregon 
AL J. LAUE 

Solicitor General 
THOMAS H. DENNEY 

Assistant Attorney General 
Counsel for Respondent

December 1977

75



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