The Ninth Circuit Court of Appeal issued a clarifying opinion that goes beyond what the Supreme Court has ruled about how a jury must weigh a defendant’s failure to testify if a trial judge does not properly instruct the jury about his rights. Although issued as an unpublished opinion, the Ninth Circuit has now outlined what is needed for a “harmless error exception” to federal law.

California’s CALCRIM No. 355, the Defendant’s Right Not to Testify states that “A defendant has a

Constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” This statement must be given in order to protect the defendant.

No such instruction was given in the case of Howard Forbes v. L. Eldridge, Warden. Forbes appealed the District Court’s denial of his writ of habeas corpus to the Ninth Circuit.

Forbes is currently serving “multiple consecutive indeterminate life terms” in state prison for kidnapping, aggravated assault, rape, and several additional sex crimes against a 22-year-old woman. In District Court in 2020, he did not contest the fact that he had committed the sex crimes. Instead, he claimed that the trial judge erred when he “failed to instruct the jury against drawing an adverse inference from Forbes’s decision not to testify.”

A three-judge panel comprised of Justices Johnnie B. Rawlinson and Andrew D. Hurwitz and Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation, affirmed the ruling of Presiding District Judge Morrison C. England of the First District Court of Appeal for the Eastern District of California on December 1. England ruled that appellant Forbes’s petition for a writ of habeas corpus was properly denied even though no jury instruction required by federal and state law was given.

The ruling held that the District Court did not fail to apply any clearly settled federal law, and by doing so, it permitted a “harmless error” exception that could be applied when a judge fails to instruct the jury about a defendant’s failure to testify. This ruling goes beyond what Justice Potter Stewart said in Carter v. Kentucky in 1981.

Reversing a Kentucky burglary conviction by a vote of 8-to-1 because a proper jury instruction was not given, Stewart said, “While it is arguable that a refusal to give an instruction similar to one that was requested here can never be harmless, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky.”

In its opinion, the Ninth Circuit did reach that issue. It agreed that the trial judge erred when he failed to give the jury proper instruction. However, it also agreed with the 2015 unpublished opinion in Forbes’s case by California Court of Appeal Justice Sandra I. Marguiles. She ruled that while trial judge Nelson erred when he failed to give a Carter instruction, “the trial court’s inadvertent failure…was harmless beyond a reasonable doubt.” Other California courts have made similar rulings in similar cases.

Forbes appealed. Relying on Carter V. Kentucky, he submitted a petition that argued that trial judges must inform the jury that he has a right against self-incrimination and his failure to testify must not be used against him.

District Judge England, however, ruled that the lack of the jury instruction required by Carter is not absolute if it is harmless error. He gave three justifications for his harmless error finding. First, although the trial judge did not give the Carter instruction to the jury as they were about to begin deliberation, he had given the required instruction earlier in the trial.

Second, during the trial, the prosecutor did not comment on Forbes’s failure to testify, and there is no federal law that requires this. The opinion states that even though the prosecutor’s summation said that the defense “had presented no evidence to rebut the state’s case, the Supreme Court has not established that a prosecutor may not comment on the weight of the evidence in a way that indirectly refers to the defendant’s silence.”

Third, the opinion concluded that the weight of the evidence was so strong that the lack of the jury instruction was harmless error. The facts of the case showed that the victim remembered the night and had identified Forbes as her assailant. She was injured and traumatized. In addition, Forbes’s claim that the sexual acts were consensual was negated by the fact that Forbes had previously committed another sexual battery.

For these reasons, the Ninth Circuit concluded that the district court did not “unreasonably apply federal law.” It is not unreasonable to project that the limits of Carter will need to be clarified as other Circuits agree or disagree with the Ninth Circuit’s harmless error exception in the future.