Can trial courts question defendants about testifying in front of juries? State v. Saenz Explained

In State v. Saenz, the Utah Court of Appeals addressed whether a trial court’s colloquy with a defendant about his decision not to testify, conducted in the jury’s presence, constitutes reversible error under the Fifth Amendment.

Background and Facts: Jesse Saenz was convicted of murder, theft, and firearm possession after killing E.O. during a robbery at his grandfather’s Fort Duchesne property. GPS data from Saenz’s ankle monitor tracked his movements to the crime scene, and he was later arrested in Arizona with the victim’s car and stolen items. Before closing arguments, the trial court questioned Saenz in front of the jury about whether he understood his right to testify and confirmed his voluntary decision not to do so. The court also gave proper jury instructions about not considering his silence.

Key Legal Issues: The primary issue was whether the trial court’s on-the-record colloquy with Saenz about his decision not to testify, conducted in the jury’s presence, violated his Fifth Amendment rights and constituted plain error.

Court’s Analysis and Holding: The Court of Appeals expressed concern about questioning defendants regarding their right to silence in front of juries, citing prior precedent that trial courts have no affirmative duty to conduct such colloquies and noting the risks of introducing error or influencing defendants. However, the court did not reach whether the colloquy was obvious error because Saenz failed to demonstrate prejudice. Following State v. Bond, the court held that unpreserved federal constitutional claims must still satisfy plain error’s prejudice requirement—defendants cannot simply presume prejudice for constitutional violations.

Practice Implications: This decision reinforces that preservation remains critical even for constitutional issues. The court noted that overwhelming evidence of guilt and curative jury instructions can render errors related to commentary on defendants’ silence harmless. Trial courts should conduct any necessary colloquies about testifying outside the jury’s presence to avoid potential constitutional issues.