As you know, (defendant) elected not
to testify at trial. It is his/her constitutional right to remain
silent.
You must not consider for any purpose
or in any manner in arriving at your verdict the fact that (defendant) did not
testify. That fact should not enter into
your deliberations or discussions in any manner, at any time.
(Defendant) is entitled to have the
jury consider all evidence presented at trial.
He/She is presumed innocent whether or not he/she chooses to testify.
[1] The defendant’s individual consent
should be obtained when giving this charge.
Also, where non-testifying defendants disagree as to whether the charge
should be given, it is preferable to give the charge as to all defendants. See State v. McNeil, 164 N.J.
Super. 27 (App. Div. 1978) and Lakeside v. Oregon, 435 U.S.
333 (1978). See also Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v.
California, 380 U.S. 609 (1965).; State v. McLaughlin, 93 N.J.
Super. 435, 439 (App. Div. 1967); N.J.S.A. 2A:84A-17(1); U.S. v.
Garguillo, 310 F. 2d 249, 252 (2 Cir. 1962); U.S. v. Kelly,
349 F. 2d 720, 769 (2 Cir. 1965), cert. denied 384 U.S.
947 (1966); State v. De Stasio, 49 N.J. 247 (1967).