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2.4-7 Defendant's Testimony
Revised to December 1, 2007
In this case, the defendant testified. An accused person, having testified, stands before you just like any other witness. (He/she) is entitled to the same considerations and must have (his/her) testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. You have no right to disregard the defendant's testimony or to disbelieve the defendant's testimony merely because (he/she) is accused of a crime. Consider my earlier instructions on the general subject matter of credibility and apply them to the defendant's testimony.
Commentary
Our appellate courts have consistently upheld an instruction that referenced the defendant's "interest in the outcome" of the case, as long as it was accompanied by an instruction to evaluate the defendant's testimony in the same fashion as the testimony of other witnesses. See generally State v. Williams, 220 Conn. 385, 396-97 (1991); State v. Rodriguez, 60 Conn. App. 398, 407-08 (2000), cert. denied, 255 Conn. 928 (2001); State v. Scarpiello, 40 Conn. App. 189, 212-15, cert. denied, 236 Conn. 921 (1996); State v. Hanks, 39 Conn. App. 333, 350, cert. denied, 235 Conn. 926 (1995); State v. Colon, 37 Conn. App. 635, 639-41, cert. denied, 234 Conn. 911 (1995). The Second Circuit found it error to instruct that the defendant's interest in the outcome of the case "creates a motive to testify falsely." United States v. Brutus, __ F.3d __ (2nd Cir. 10-2-2007).
In Portuondo v. Agard, 529
U.S. 61, 68, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), the United States
Supreme Court held that when weighing a defendant's credibility, a jury is
"perfectly entitled" to consider that the defendant had the opportunity to
tailor his testimony to conform to that of the other witnesses. The court noted
that "inferring opportunity to tailor from presence is inevitable, and
prohibiting that inference (while simultaneously asking the jury to evaluate the
veracity of the defendant's testimony) is demanding the impossible." (Emphasis
in original.) Id., 68 n.1. In State v. Alexander, 254 Conn. 290, 295-96
(2000), our Supreme Court followed Portuondo v. Agard, and overruled
State v. Cassidy, 236 Conn. 112, cert. denied, 519 U.S. 910, 117 S. Ct. 273,
136 L. Ed. 2d 196 (1996). "It [is] proper for the prosecutor to request that
the jury generally consider the defendant's unique opportunity when determining
the credibility of his testimony." State v. Alexander, supra, 254 Conn.
299. It should be noted that the issue in Portuondo v. Agard and
State v. Alexander was in the context of the prosecution's closing
statements, not the court's jury instructions.