(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.

(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence.

(1949 Rev., S. 8800; 1971, P.A. 237; 871, S. 122; P.A. 77-360; P.A. 80-313, S. 44.)

History: 1971 acts applied provisions equally with respect to either spouse where previously applicable only to wives receiving personal violence from husbands or to women charged with violation of specified sections; P.A. 77-360 prohibited comment upon neglect or refusal to testify “by the court or prosecuting official, except as provided in subsection (b) of this section” rather than comments “to the court or jury” and added Subsec. (b); P.A. 80-313 deleted provisions re spouse's competency as witness and option to testify or not except in cases involving violence against spouse or specified violations where testimony may be compelled.

Communication between husband and wife not privileged to extent of preventing one who overhears them from testifying thereto. 47 C. 540. Voluntary statements of accused before coroner or grand jury in no sense compulsory and are admissible in evidence. 56 C. 399. Attacking credit of accused where he does testify. 67 C. 290; 76 C. 94; 87 C. 22; 88 C. 150; 89 C. 417. Certain comments by state's attorney not objectionable. 73 C. 100; 96 C. 291. Commenting on refusal not always ground for new trial; accused must at once object. 79 C. 477. Effect of testimony by one of two jointly indicted. 82 C. 59. Remark by state's attorney in arguing question of evidence while putting in his own case, held not within rule. 83 C. 455. In absence of request, court need not charge as to rule. 90 C. 132. Proper course for accused to take to insure his rights under rule. 96 C. 291. Charge under rule. 108 C. 463, but see 127 C. 592. Does not prevent inference being drawn from failure to testify; but such failure must not be commented upon. 108 C. 463. Cited. 109 C. 134; Id., 497. For violence received from husband before marriage, wife may refuse to testify against him. 113 C. 291. Court may comment to jury on failure of accused to testify. 119 C. 35; 127 C. 591. Reference by state's attorney to fact defendant's attorney offered no testimony to refute state's witnesses, not a violation of section. 130 C. 549. Court may take into consideration failure of an accused to testify only if state has made out a prima facie case against him. 139 C. 124. Does not preclude cross-examination of the accused as to inconsistent statements made to spouse. 145 C. 60. It is violation of fifth and fourteenth amendments for court to comment on failure of defendant in a criminal trial to testify; interpretation before Griffin v. California, 380 U.S. 609. 154 C. 41. Cited. 171 C. 12; Id., 586. Section gives witness' spouse option of testifying against accused spouse. 172 C. 37. Cited. Id., 74; 179 C. 327; 197 C. 369; 201 C. 462; 206 C. 300; Id., 621; 213 C. 422; 222 C. 469; 223 C. 52; 233 C. 813. Prosecutorial comments on defendant's exercise of right not to testify discussed. 243 C. 324. State's attorney's comment in closing argument that “I gave you everything I had” not seen as comment on defendant's failure to testify. 244 C. 547.

Cited. 7 CA 292; 9 CA 169; judgment reversed, see 205 C. 370; 13 CA 386; 16 CA 264; 22 CA 321; 24 CA 642; 26 CA 674; 27 CA 601; Id., 643; 28 CA 369. Use of term “unfair” in lieu of term “unfavorable” inference discussed. 36 CA 41. Cited. 39 CA 96. Legislature could not have intended that instructions to venire panel would comply with dictates of section to give instructions to jury. 60 CA 301. Although the recorded out-of-court statement of defendant was not equivalent of in-court testimony where defendant puts his credibility in issue, prosecutor's admonition to jury to consider defendant's interest in the outcome of the case when evaluating defendant's statement was not a forbidden indirect comment on defendant's decision not to testify. 78 CA 535. Defendant's right to a no adverse inference instruction was violated by court's postcharge, supplemental instruction that materially and substantially misstated the nature of defendant's privilege not to testify. 83 CA 811. Prosecutor's statement that sexual assault cases are often decided on credibility of victim or defendant was not an improper comment on defendant's failure to testify. 86 CA 641. Prosecutor's comments made during rebuttal argument regarding defendant's failure to testify were a clear violation of section. 156 CA 138; judgment affirmed, see 324 C. 190.

Where state's case rested entirely on defendant's testimony, held it was error not to inform defendant of his privilege against self-incrimination. 24 CS 353. Defendant does not have option to refuse to testify in civil proceeding for homicide by automobile on ground that he may be subject to criminal prosecution for some facts. 28 CS 59. Cited. 33 CS 505; Id., 700.

Defendant's failure to bring timely objection re comments on his refusal to testify results in waiver of right. 2 Conn. Cir. Ct. 68. Charge to jury that, if they concluded there was such a strong probability of defendant's guilt that denial or explanation by him was reasonably called for, then they would be entitled to consider his failure to testify, held in violation of due process and constituted reversible error. 3 Conn. Cir. Ct. 463, 464. Any comment by presiding judge or counsel forbidden; court's refusal to charge jury that no inference of guilt could be drawn or sinister meaning attached to defendant's failure to testify, proper. 4 Conn. Cir. Ct. 520, 522, 523. Cited. 5 Conn. Cir. Ct. 181. Defendants who took stand for limited purpose of testifying new counsel represented them entitled to assistance of counsel when questioning of them broadened out to other matters. Id., 242.

Subsec. (b):

Even though defense counsel did not object to the court's failure to give the “no unfavorable inference” instruction, the judgment was set. 182 C. 330. Cited. Id., 403. Failure to follow mandate of statute is reversible error despite failure to make a timely request or objection. Id., 580. Cited. 183 C. 444; 188 C. 681; 190 C. 1. Use of “unreasonable” instead of “unfavorable” in jury instruction constituted harmful error. 194 C. 594. Cited. 195 C. 421; Id., 444; 197 C. 574; Id., 588; 198 C. 77; 199 C. 322; 201 C. 659; 209 C. 636; 210 C. 751; 227 C. 910. Harmless error analysis applied to erroneous instruction under statute; judgment of Appellate Court in 31 CA 688 reversed. 229 C. 516. In context of entire jury charge re defendant's decision not to testify, reference to defendant's “failure to testify” was neither negative in substance nor improper; phrase “unless the defendant requests otherwise” does not obligate court to use defendant's requested language. 255 C. 581. When the jury charge contains no language that resembles the mandated instruction, it cannot be assumed that the jurors had sufficient knowledge of the law to be able to glean from the balance of instructions that they should draw no adverse inference from defendant's failure to testify. 322 C. 796.

Cited. 5 CA 79; 6 CA 124; 7 CA 477; 10 CA 302; 11 CA 425; 15 CA 342; Id., 749; 17 CA 490; 19 CA 48; Id., 618; 20 CA 721; 21 CA 162; 23 CA 28; Id., 151; 28 CA 290; 31 CA 688; judgment reversed, see 229 C. 516. Total omission of “no adverse interference” instruction is plain error that is not subject to harmless error analysis. 33 CA 126. Cited. 34 CA 153. Trial court's charge did not comply with requirements of statute because of improper reference to loss of defendant's presumption of innocence. Id., 250. Cited. 37 CA 672. Court will not infer a waiver of the mandatory instruction from defendant's silence. 59 CA 426. Where counsel had requested omission of instruction under section in the jury charge, it was not error for court to fail to inquire expressly of defendant if he also wanted the court to omit the instruction. 64 CA 340. Since trial court's instruction to jury not to draw any unfavorable inference from the fact that defendant did not testify given in the context of instructions concerning how jury was to find facts in general did not clearly inform jury that it could not use defendant's silence as a factor in its verdict and did not satisfy the statutory requirement that court convey a specific instruction to jury that no unfavorable inference could be drawn from the fact that defendant did not testify, and state failed to establish that the deficient instruction was clarified or remedied by the court and failed to demonstrate harmlessness of the constitutional violation beyond a reasonable doubt, judgment was reversed and the case remanded for new trial. 97 CA 266. Where lower court had inquired about specific instruction re failure to testify and court and defense counsel discussed instruction, such discussion constituted a request for a no unfavorable inference instruction; reiterated previous holding that provisions are not required to be waived personally by defendant but can be waived by defense counsel. 109 CA 679.

Cited. 36 CS 583.