Dissenting Opinion
Pivarnik, J.I respectfully dissent from the majority opinion in this case, which reverses the trial court because of the giving of the instruction on the defendant’s failure to testify. I disagree with the statement of the majority, taken from Gross v. State, (1974) 261 Ind. 489, 491-92, 306 N.E.2d 371, 372, to the effect that “if the judge states his intention to submit the instruction and the defense does object, the giving of the instruction constitutes an invasion of Fifth Amendment rights and judicial error.”
The instruction given in this case was based on Ind. Code §35-1-31-3 (Burns 1975), and explained to the jury that it was their duty not to comment upon, refer to, or in any manner consider the defendant’s failure to testify in reaching their verdict. The same statute states that it is the duty of the court to so instruct the jury. It is well established, among the federal circuits, that it is not error for the court to give such an instruction on its own motion. Sullivan v. Scafati, (1st *490Cir. 1970) 428 F.2d 1023, 1027, cert. denied, (1971) 400 U.S. 1001, 91 S.Ct. 478, 27 L.Ed.2d 452; United States v. Garguilo, (2d Cir. 1962) 310 F.2d 249, 252; Bellard v. United States, (5th Cir. 1966) 356 F.2d 437, 439, cert. denied, (1966) 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83; United States v. Carter, (6th Cir. 1970) 422 F.2d 519, 521; United States v. Schwartz, (7th Cir. 1968) 398 F.2d 464, 469-70, cert. denied, (1969) 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705; United States v. Martin, (8th Cir. 1975) 511 F.2d 148, 152; Coleman v. United States, (9th Cir. 1966) 367 F.2d 388; Hanks v. United States, (10th Cir. 1968) 388 F.2d 171, 175, cert. denied, (1969) 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131. Further, such instructions have been held proper even over an objection by the defendant, as was made in the present case. United States v. Garguilo, supra; United States v. McGann, (5th Cir. 1970) 431 F.2d 1104, 1109, cert. denied, (1971) 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 81; United States v. Wick, (7th Cir. 1969) 416 F.2d 61, 63, cert. denied, (1969) 396 U.S. 961, 90 S.Ct. 436, 24 L.Ed.2d 429; Franano v. United States, (W.D. Mo. 1965) 243 F.Supp. 709, 711-12. In support of cautionary instructions on the defendant’s failure to testify, it was said in Garguilo, supra, 310 F.2d at 252:
“It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant’s failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best.”
In the case of United States v. Williams, (D.C. Cir. 1975) 521 F.2d 950, cited by the majority, the situation was very different from that presented in the present case. No instruction concerning failure to testify was given in Williams, because one of the two co-defendants requested such an instruction and the other did not. The opinion held that this refusal of the court was not erroneous because the appellant, who had requested the instruction, did not distinctly state the *491ground upon which he objected when the court refused to give the instruction. On the merits, however, the court stated, at 521 F.2d at 955:
“Adherence to a rule requiring the reading of a general instruction [on failure to testify under 18 U.S.C. § 3481 (1970)] when requested by one defendant, regardless of the wishes of codefendants, would protect the statutory right without interfering with any substantial interests of co-defendants.”
Thus, the Williams case actually favored the reading of failure to testify instructions, and found no constitutional problems in them. Williams did imply, by way of footnote, that it might be “better practice” to respect a tactical decision of a defendant not to have such an instruction read. The opinion of Judge Learned Hand in Becher v. United States, (2d Cir. 1924) 5 F.2d 45, cert. denied, (1925) 267 U.S. 602, 45 S.Ct. 462, 69 L.Ed.2d 808, was cited as authority for this proposition. The full statement of Judge Hand relative to this issue, however, was as follows:
“It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.” Becher, id., at 49 (emphasis added).
It is true, as stated by the majority, that choice of trial tactics is within the province of the defendant and his counsel. The same can be said of each and every party in each and every trial before a court. However, the conduct and handling of the cause by the presiding judge is not directed by the trial tactics of the parties, and failure to yield to them is not error unless the court in fact violates the lav/. Neither the instruction given here nor the court’s action in giving it was a violation of the Fifth Amendment; in fact, the instruction was a correct statement of the law. The statement of this court in Gross, that the operation of the Fifth Amendment is dependent upon the defendant’s choice of whether or not to object to the instruction, is simply incorrect. A given *492action of the trial court either violates the Fifth Amendment or it does not. If the law were otherwise, cases with multiple defendants, where one defendant requests a failure to testify instruction and another does not, would present constitutional dilemmas incapable of resolution.
There is no question but that Griffin v. California, (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, presented a set of facts far different from this case. There, the trial court followed a provision of the California constitution and instructed the jury that they had a right to consider the failure of the defendant to explain or deny the evidence against him. Without question, such an instruction would be reversible error under Ind. Code § 35-1-31-3 (Burns 1975). Even in the face of such a strong comment on failure to testify, however, Justices Stewart and White dissented. Justice Stewart’s opinion is especially applicable to the situation of the present case and the neutral and cautionary instruction given:
“The . . . procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial, both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth.” Griffin, id., 380 U.S. at 622, 85 S.Ct. at 1237, 14 L.Ed.2d at 114.
The instruction given in this case was an accurate statement of the law applicable to the conduct of the defendant observed by the jury. The Fifth Amendment does not mandate that this law be kept a secret from the jury.
Givan, C.J., concurs.
Note. — Reported at 371 N.E.2d 1303.