While a prosecutor in a criminal trial may comment on a defendant’s failure to produce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify should not create a presumption against the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).

The prohibition against such remarks encompasses even those that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used against him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used against him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).

State v. Grant. Robert Lee Grant III was tried in Mecklenburg County Superior Court for misdemeanor assault on a female, possession of firearm by a felon, and assault by strangulation. The following exchange occurred during closing argument:

[STATE]: Now, the defendant of course, it is his right not to testify, and you are not to hold that against him. But I also want you to think about the fact that the defendant chose to put on evidence. He didn’t have to do that. He could have sat there and said the State hasn’t proven their case and I don’t need to do anything. But what did he choose to put up? More distractions, pictures of officers pointing at the defendant.

[DEFENDANT]: Objection, Your Honor. This is unfair –

THE COURT: What’s the objection?

[DEFENDANT]: — unfairly going into whether he chose to take the stand, not take the stand, and put on evidence.

THE COURT: Overruled, overruled.

[STATE]: You can consider the evidence that the defendant put on. You cannot hold it against him, the fact that he did not testify. We do consider what they chose to put on. And it was just one distraction after another.

The issue. Hindsight is 20/20, so it is fairly easy to spot the problem. The prosecutor commented on Grant’s failure to testify. The defendant objected. And the trial judge overruled the objection. That’s error.

So what happened next?

Take two. After the State finished its closing argument, the trial court dismissed the jury for lunch. Following the lunch recess, Grant’s attorney moved for a mistrial based on the trial court’s failure to give a curative instruction following the State’s improper comment.

The trial court denied the motion, but advised the parties that he would deliver a curative instruction to the jury. When the jury returned, the trial court said to them:

So, ladies and gentlemen, the defendant in this particular matter has not testified. The law gives the defendant this privilege. This same law also assures the defendant that this decision not to testify creates no presumption against the defendant; therefore, the silence of the defendant is not to influence your decision in any way. I will tell you furthermore that during the closing argument, the district attorney made some reference to the defendant not testifying and some reference to it. It is not proper, ladies and gentlemen, for a lawyer to comment on the defendant’s not testifying. And I will tell you in hindsight that it would have been proper for me to sustain the objection at the time and indicate at that time that the jury should not utilize that in any way against the defendant because it creates no presumption against the defendant. We discussed this during jury selection as well, be mindful that the defendant’s privilege not to testify, he is shrouded with an assurance that the jurors will not utilize that against him during their later deliberations. Does this make sense to everyone, and if you understand my instruction, please raise your hand and let me know. Okay. The jurors have indicated so.

Slip op. at 5.

The jury thereafter returned a verdict of guilty on the assault on a female charge, and verdicts of not guilty on the two other charges. The trial court sentenced Grant to 150 days imprisonment. He appealed, arguing that the trial court committed prejudicial error by overruling his objection to the State’s improper comment and by failing to promptly instruct the jury to disregard it.

The Court of Appeals’ analysis. The Court determined that the State violated Grant’s constitutional and statutory rights by commenting twice during closing argument about Grant’s decision not to testify. The Court further determined that trial court erred when it initially overruled Grant’s objection. Nevertheless, the Court held that the “robust curative instruction” that the trial court delivered immediately after the lunch recess was sufficient (and apparently sufficiently prompt) to cure both the State’s improper comment and the improper overruling of the objection. Slip op. at 6.

Other than indicating that a trial court can remediate an erroneous evidentiary ruling by readdressing the issue following a recess, Grant does not break much new ground.  The case does, however, serve as a useful reminder of a couple of important principles.

• First, as mentioned at the outset of the post, it is improper for the State to make any remark about a defendant’s election not to testify at his or her criminal trial.
• Second, if the State does make such a remark and the defendant objects, the trial court must sustain the objection and promptly provide a curative instruction.
  • It is not sufficiently curative for the trial court to merely later include in the jury charge an instruction on the defendant’s right not to testify. State v. Monk, 286 N.C. 509, 516–17 (1975). Instead, the trial court must promptly advise the jury that the remark was improper and must instruct the jury that it may not consider against the defendant his election not to testify. Reid, 334 N.C. at 556.
  • If the defendant does not object or rejects the trial court’s offer to provide a curative instruction, the defendant may not be granted a new trial on appeal unless the statement was so grossly improper as to require the trial court to intervene on its own motion. See Randolph, 312 N.C. at 207.

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