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Right to "no adverse inference" instruction in enhancement trials?

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by: Ryan • April 13, 2013 • no comments

Defendants who don't testify during a trial are entitled to an instruction telling the jury that it should not draw an adverse inference from his decision not to testify. Is the defendant entitled to the same instruction -- or a renewal of the instruction if already given during the culpability phase -- during an enhancement trial?

There's a petition for cert on this issue in the context of a capital case, where the defendant has pleaded guilty to the underlying offense and the aggravators. Not a perfect analog to non-capital sentencing trials, but close enough that you should probably be asking for such an instruction if you aren't already.