Jury Instruction that Testifying Defendant Has Motive to Lie Impermissibly Undermines Presumption of Innocence

A jury has a hard enough (if not impossible) time following the presumption of innocence instruction when the defendant decides to testify; the odds are stacked even further against the defendant if the judge specifically points out that the defendant is an “interested witness.” The playing field was leveled somewhat yesterday by the Second Circuit’s decision in United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007). In it, the Court was called upon to reconsider the validity of a jury instruction it had previously approved on how to evaluate a defendant’s testimony at trial.

Poor Ms. Brutus had an uphill battle in attempting to explain to the jury her compromising circumstances (arrested at the airport in possession of 12 men’s sandals filled with cocaine) and her even more compromising post-arrest statements (that she knew the sandals contained drugs, had been recruited to make the trip for $3,000, and was to hand the drugs over to a stranger in the airport lobby). Her plight was further magnified by the judge’s instruction to the jury – over defense counsel's objection – that she had “a deep personal interest in the outcome of her prosecution,” so unique, it “create[d] a motive to testify falsely.” The very same instruction had been approved by the Second Circuit in United States v. Talkow, 532 F.2d 853 (2d Cir. 1976). Overruling Talkow and in light of its decision on a similar instruction last year in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the Second Circuit found the instruction in Brutus to be constitutional error: “Simply stated, an instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence because it presupposes the defendant’s guilt,” the Court held. The Court further noted that the error is not cured by additional language in the instruction that the defendant can still be truthful. Going forward, and quoting with approval the Seventh Circuit’s pattern instruction on the subject, the Court advises district courts that “if the defendant has testified, the charge should tell the jury to evaluate the defendant’s testimony in the same way it judges the testimony of other witnesses.” Practitioners should therefore closely scrutinize jury instructions addressing a defendant’s testimony for deviations from the approved instructions set forth in Brutus.

Unfortunately, the holding is a pyrrhic victory for Ms. Brutus, mother of two, currently serving a ten-year mandatory minimum sentence. The Court found the jury instruction error to be harmless beyond a reasonable doubt in light of Ms. Brutus’s “manifestly incredible” testimony, which the trial judge described as “the most incredible perjury” he had ever heard.