When Your 5th Amendment Rights Collide with Your Burden of Production
This case involves a recent Court of Appeals decision out of Texas —State v. Vasquez, 2018 Tex. App. LEXIS 9748 (TX Ct. App. 2018)—that illustrates how a refusal to take the witness stand can effectively strip you of the ability to argue self-defense to a jury.
Hopefully, we all know that we have the 5th Amendment right under the US Constitution to not be compelled to testify against ourselves and that being the case, no defendant can be compelled to take the witness stand against their wishes. Further, the defendant’s declining to take the witness stand and testify cannot be used against him by the jury in arriving at their verdict, and the jury will be so instructed.
Nevertheless, exercising this right under the US Constitution in a self-defense case can potentially result in the jury being denied the opportunity to actually consider the legal defense of self-defense as a potential basis for your acquittal.
Facts of the Case: State v. Vasquez
In this case we have a Defendant, Vasquez, who was angry about his ex-wife’s new boyfriend, Walker. Although the decision does not say so explicitly, it suggests that Walker may have been black, and that Vasquez may have held some racial animus towards him as a result.
There was evidence presented at trial that Walker was substantively displacing Vasquez not merely as the ex-wife’s love interest but also as the father figure to the six children Vasquez had with his ex-wife. There was also evidence that this displacement was driving Vasquez into a murderous rage.
The day of the killing Vasquez got into a verbal argument with his ex-wife, at her home and in front of their children, and started pushing her hard. Walker, who was living in the ex-wife’s home, told Vasquez to stop pushing the ex-wife.
In response Vasquez shouted racial slurs at Walker, and punched Walker in the arm and chest. Walker did not respond. Vasquez then punched Walker in the face, at which point Walker punched back, knocking Vasquez to the ground.
Vasquez then walked to his nearby vehicle, retrieved a handgun, and fired two shots into the air. Walker closed on Vasquez to try to disarm him, and the two men struggled over the gun. During this struggle several shots were fired, one of which struck and killed Walker.
Murder Trial & Verdict
Vasquez was tried on a charge of murder. At trial his attorney argued that Vasquez shot Walker in self-defense. Vasquez himself did not testify at trial. Although I have no knowledge of Vasquez criminal history, it is common for defendants with such a history to avoid taking the witness stand because doing so allows that history into evidence and before the jury.
At the close of trial Vasquez’ lawyer requested a jury instruction on self-defense, but the trial judge declined this request. The reason for declining the request was that there had been no evidence at trial that Vasquez’ possessed a fear of deadly force harm from Walker. Such a fear would be required in order to justify Vasquez use of deadly force as lawful self-defense, and so evidence of such a fear would be required before the jury could reasonably be instructed on self-defense as a path to acquittal.
This placed Vasquez in a conundrum. The simple fact was that the only source for such evidence of his reasonable fear of deadly force harm at the hands of Walker (if any such existed) was Vasquez himself. To get that source before the jury would mean taking the witness stand, and testifying to that fear. It would also mean subjecting himself to cross-examination and impeachment. So greatly did Vasquez not want to expose himself to cross and impeachment that he adamantly refused to testify.
Denied the self-defense jury instruction, Vasquez was convicted of murder by the jury and sentenced to 30 years.
Basis for Appeal
On appeal Vasquez argued that he had a 5th Amendment right under the US Constitution to not testify against himself, and that the trial judge violated this right by requiring his testimony as a condition to receiving the requested self-defense jury instruction.
Appellate Court Reasoning & Decision
The appellate court, however, disagreed. They reasoned that the trial court was not, in fact, compelling Vasquez to testify. Indeed, the trial court was explicit that the evidence of Vasquez state of mind could come from any source, and that it need not come from Vasquez own testimony. But from some source it must come, one way or another, or the result was zero evidence as to state of mind, and no legal argument—including self-defense—can be based on zero evidence.
The Court of Appeals concluded: “Because no evidence raised an inference that Vasquez reasonably believed that it was immediately necessary to shoot Walker to protect himself from deadly force, the trial court did not err in refusing to instruct the jury on self-defense,” and they affirmed his conviction and sentence.
Attorney Andrew F. Branca
Law of Self Defense LLC
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