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Bruno v. United States, 308 U.S. 287 (1939). Cases Citing This Book View Copy Cite
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Federal statutes require a cautionary instruction to a defendant that failure to testify in their own defense creates no adverse inference.

After a defendant was convicted of conspiracy to violate narcotic laws, he appealed the trial judge's refusal to instruct the jury that his failure to testify in his own defense should not create any presumption against him. The question is whether a defendant has an indefeasible right to receive such an instruction under federal law. Applying the Act of March 16, 1878, the Court holds that because Congress explicitly provided that a defendant's failure to testify shall not create a presumption against him, the trial judge has a duty to instruct the jury accordingly. This right is not a mere technicality or procedural minutiae that appellate courts may disregard.

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cited 8× by 4 distinct cases, 1945–2018 · 4 courts→ Stable · …to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict. at p. 293 ✓
cited 5× by 5 distinct cases, last quoted 1994 · 5 courts · …the failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into t… at p. 291 ✓
cited 3× by 3 distinct cases, last quoted 2009 · …matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure . . . . at p. 294 ✓
1,223 citation events (43 in the last 25 years) across 80 distinct courts.
Strongest positive: State v. Kyle Lee Monahan (wis, 2018-06-28)
Treatment trajectory · 1940 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Kyle Lee Monahan
Wis. · 2018 · confidence medium
The federal harmless error rule was codified "to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict." Bruno v. U.S., 308 U.S. 287, 294 (1939).
discussed Cited as authority (rule) People v. Syharath CA4/3
Cal. Ct. App. · 2014 · confidence medium
In Griffin, supra, 380 U.S. at page 615, the Supreme Court of the United States opined, “We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Fn. omitted.) “‘“Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is 3 Griffin v. California (1965) 380 U.S. 609 (Griffin). 11 uncontra…
cited Cited as authority (rule) Rhoades v. Henry
9th Cir. · 2010 · confidence medium
Griffin, 380 U.S. at 615.
discussed Cited as authority (rule) United States v. Dick Noel
7th Cir. · 2009 · confidence medium
As a result, we should be more skeptical of imposing 1 (...continued) errors” as “matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure . . . .” Bruno v. United States, 308 U.S. 287, 294 (1939); see also United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994) (referring to technical errors as “errors for which there is no reasonable possibility that the verdict could have been affected”).
discussed Cited as authority (rule) United States v. Dick Noel
7th Cir. · 2009 · confidence medium
As a result, we should be more skeptical of imposing 1 (...continued) errors” as “matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure . . . .” Bruno v. United States, 308 U.S. 287, 294 (1939); see also United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994) (referring to technical errors as “errors for which there is no reasonable possibility that the verdict could have been affected”).
discussed Cited as authority (rule) United States v. Dick Noel
7th Cir. · 2009 · confidence medium
As a result, we should be more skeptical of imposing 1 (...continued) errors” as “matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure . . . .” Bruno v. United States, 308 U.S. 287, 294 (1939); see also United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994) (referring to technical errors as “errors for which there is no reasonable possibility that the verdict could have been affected”).
discussed Cited as authority (rule) Ochoa v. Cockrell
5th Cir. · 2002 · confidence medium
During closing arguments, the district judge instructed the prosecutor in the presence of the jury “not to refer to the Defendant not testifying.” Furthermore, the jury charge states that the jury “must not refer to or discuss any matters not in evidence.” We have no reason to assume that the jury did not heed the trial court’s instructions.27 Moreover, when an objection to a jury charge is not properly preserved, the instruction must be clearly 26 Id. 27 See Lakeside v. Oregon, 435 U.S. 333 , 340 & n.11 (1978) (“As this Court has remarked before: ‘[W]e have not yet attained that…
discussed Cited as authority (rule) United States v. Leroy Harris, Jr.
8th Cir. · 1997 · confidence medium
Congress passed Rule 52(a) as a restatement of 28 U.S.C. § 391 ,6 which was enacted to “prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict.” Bruno v. United States, 308 U.S. 287, 294 (1939).
cited Cited as authority (rule) State v. Haley
N.J. Super. Ct. App. Div. · 1996 · confidence medium
Bruno v. United States, 308 U.S. 287, 293-94 , 60 S.Ct. 198, 200 , 84 L.Ed. 257, 260 (1939).
discussed Cited as authority (rule) Brecht v. Abrahamson (2×)
SCOTUS · 1993 · confidence medium
If the error is of such a character that its natural effect is to prejudice a litigant's substantial rights, the burden of sustaining a verdict will, notwithstanding this legislation rest upon the one who claims under it.' Ibid.; Bruno v. United States, [ 308 U. S. 287, 294 (1939)]; Weiler v. United States, 323 U. S. 606, 611 [(1945)]." Kotteakos v. United States, 328 U. S., at 760-761 . [2] "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error." Id., at 765 . [3] Justice Rutledge continued: "That faculty cannot ever be wholly …
discussed Cited as authority (rule) United States v. Lane (2×)
SCOTUS · 1986 · confidence medium
As Justice Frankfurter explained in refusing to require a showing of prejudice to justify reversal for a statutory violation: "Suffice it to indicate, what every student of the history behind the Act of February 26, 1919, knows, that that Act was intended to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict." Bruno v. United States, 308 U. S. 287, 294 (1939).
discussed Cited as authority (rule) James v. Kentucky
SCOTUS · 1984 · confidence medium
That should have nothing to do, no bearing at all, on your decision in this case.” 5 Tr. 4. 6 See Bruno v. United States, 308 U. S. 287, 294 (1939) (Court unwilling to assume “that jurors, if properly admonished, neither could nor would heed the instructions of the trial court” not to draw an improper inference). 7 When asked at oral argument whether his “basic argument [is] that your client was entitled to an instruction because he had requested something almost like an instruction or that he was entitled to an admonition *350 because he had requested an admonition,” petitioner’s …
discussed Cited as authority (rule) Pearson v. State
unknown court · 1975 · confidence medium
I am persuaded by the reasoning of Mr. Justice Frankfurter in Bruno v. United States, 308 U.S. 287, 294 [2] as he responded "To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact...." Justice Frankfurter continued: "... it suffices to say that, however difficult it may be to exercise enlightened self interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose." If an accused is "entitled as a matter of right to have the trial judge tell the jury it must not attac…
discussed Cited as authority (rule) United States v. Milford E. Cook (2×)
9th Cir. · 1972 · confidence medium
Bruno v. United States, supra [ 308 U.S. 287, 293, 294 , 60 S.Ct. 198, 200 , 84 L.Ed. 257 ].
discussed Cited as authority (rule) People v. Burns
Cal. Ct. App. · 1969 · confidence medium
There Justice Lillie observed that the United States Supreme Court has not extended its holding in Griffin to preclude the giving of the subject instruction since Griffin “ ‘forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’ ” (P. 208; Griffin v. California, supra, 380 U.S. 609, 615 [ 14 L.Ed.2d 106, 110 , 85 S.Ct. 1229 ].) 3 Although no case has been found proscribing the subject instructions when given, as here, at the request of defendant, we note that in Bruno v. United States, 308 U.S. 287, 292…
discussed Cited as authority (rule) People v. Hernandez
Cal. Ct. App. · 1968 · confidence medium
The Supreme Court held it to be reversible error to refuse defendant's request to instruct the jury concerning his right to remain silent because a federal statute gives a defendant being tried in the federal court the right to invoke the following instruction: " 'The failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manne…
examined Cited as authority (rule) People v. Ross (4×)
Cal. · 1967 · confidence medium
The official argument to the voters describes the reasons for the reform movement in the United States and presents examples of technical errors complained of by the reformers. [8] The California constitutional *83 amendment was adopted on October 10, 1911, and the federal harmless error rule was adopted by Congress in 1919. [9] Based on this history the Supreme Court stated that the federal harmless error statute was intended "to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict." ( Bruno v. Uni…
discussed Cited as authority (rule) People v. Modesto (2×)
Cal. · 1967 · signal: cf. · confidence medium
As the court pointed out in Griffin, absent such a suggestion “the inference of guilt is not always so natural or irresistible.” (380 U.S. at pp. 614-615 [ 14 L.Ed.2d at p. 110 ]; cf. Bruno v. United States (1939) 308 U.S. 287, 294 [ 84 L.Ed. 257, 261 , 60 S.Ct. 198 ].) We do not mean to imply that a prohibited comment is necessarily or even ordinarily harmless so long as it is unaccompanied by a statement that silence implies guilt; we simply note that the absence of any such statement tends to mitigate the independently damaging effect of a comment uttered in violation of the Griffin rul…
discussed Cited as authority (rule) People v. Modesto (2×)
Cal. · 1965 · confidence medium
(Wilson v. United States, 149 U.S. 60, 65 [ 13 S.Ct. 765 , 37 L.Ed. 650 ]; Bruno v. United States, 308 U.S. 287, 292-293 [ 60 S.Ct. 198 , 84 L.Ed. 257 ] ; Adamson v. California, 332 U.S. 46, 50, fn. 6 [ 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ].) Although it is the federal privilege that is now protected by the Fourteenth Amendment (Malloy v. Hogan, 378 U.S. 1, 10 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ]), the state must follow only the constitutional and not the statutory aspects of the privilege.
cited Cited as authority (rule) United States v. Aviles
2d Cir. · 1960 · confidence medium
Ct. 198, 84 L.Ed. 257 .
discussed Cited as authority (rule) Samuel Wrightson v. United States (2×)
D.C. Cir. · 1955 · confidence medium
Bruno v. United States, 308 U.S. 287, 293-294 ( 60 S.Ct. 198 , 84 L.Ed. 257 ); Weiler v. United States, 323 U.S. 606, 611 ( 65 S.Ct. 548 , 89 L.Ed. 495 ).
cited Cited as authority (rule) United States v. Woods
cma · 1953 · confidence medium
Bruno v. United States, 308 US 287, 293, 294 , 60 S Ct 198, 200 , 84 L ed 257; Weiler v. United States, 323 US 606, 611 , 65 S Ct 548, 551 , 156 ALR 496 .
examined Cited as authority (rule) United States v. Antonelli Fireworks Co. (4×)
2d Cir. · 1946 · confidence medium
See Berger v. United States, 1935, 295 U.S. 78, 84-89 , 55 S.Ct. 629 , 79 L.Ed. 1314 , reversing 2 Cir., 73 F. 2d 278 ; Bruno v. United States, 1939, 308 U.S. 287, 293, 294 , 60 S.Ct. 198 , 84 L.Ed. 257 , reversing 2 Cir., 105 F.2d 921 ; Bollenbach v. United States, 66 S.Ct. 402 , reversing, 2 Cir., 147 F.2d 199 . 2.
discussed Cited as authority (rule) United States v. Rubenstein (2×)
2d Cir. · 1945 · confidence medium
In Bruno v. United States, 308 U.S. 287, 293, 294 , 60 S.Ct. 198, 200 , 84 L.Ed. 257 , the Supreme Court said that this statute was intended "to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict." It is suggested that in Palmer v. Hoffman, 318 U.S. 109, 116 , 63 S.Ct. 477, 482 , 87 L.Ed. 645 , 144 A.L.R. 719 , the Court took a different position.
examined Cited "see" United States v. Medina-Martinez (3×)
1st Cir. · 2005 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287, 292-93 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939). 12 .
examined Cited "see" United States v. Burgess (3×)
11th Cir. · 1999 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287, 292-93 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939) (holding that defendants have the right under 18 U.S.C. § 3481 to request and receive a cautionary instruction that failure to testify in one's own defense creates no negative presumption); United States v. Bain, 596 F.2d 120, 122 (5th Cir.1979) (same). 5 .
discussed Cited "see" United States v. Burgess
11th Cir. · 1999 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287, 292-93 (1939) (holding that defendants have the right under 18 U.S.C. § 3481 to request and receive a cautionary instruction 5 796 F.2d 1443, 1454 (11th Cir. 1986) (applying the rule established in Carter); United States v. Richardson, 764 F.2d 1514, 1529 (11th Cir. 1985) (“The jury must be told to draw no adverse inference from a refusal to testify; defendants may have that instruction as of right.”) (citing Carter, 450 U.S. at 301 ).
discussed Cited "see" United States v. Pulliza-Delgado (2×)
1st Cir. · 1996 · signal: see · confidence high
See United ___ ______ States v. Bruno, 308 U.S. 287 (1939). ______ _____ -19- Our question is whether instructing that the government has the burden of proof and that defendant does not have to testify or present evidence adequately communicates that no adverse inferences may be drawn from the fact that he does not testify.
examined Cited "see" United States v. Brand (6×)
1st Cir. · 1996 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287, 293-94 , 60 S.Ct. 198, 200-01 , 84 L.Ed. 257 (1939) (failure to give requested instruction cautioning against drawing presumptions from defendant’s failure to testify was not a mere “technical erro[r] ... which do[es] not affect ... substantial rights_”).
discussed Cited "see" O'NEAL v. McAninch
SCOTUS · 1995 · signal: see · confidence high
Brecht, supra, at 641 (Stevens, J., concurring); see Bruno v. United States, 308 U. S. 287, 294 (1939) (Frankfurter, J.) (describing technical errors as those concerned with the “mere etiquette of trials and with the formalities and minutiae of procedure”).
cited Cited "see" United States v. Alan Cohen
4th Cir. · 1987 · signal: see · confidence high
See United States v. Bruno, 105 F.2d 921, 922 (2d Cir.1939) (per curiam), rev'd on other grounds, 308 U.S. 287 (1939).
examined Cited "see" United States v. Glenn (3×)
1st Cir. · 1987 · signal: see · confidence high
See United States v. Bruno, 105 F.2d 921 (2d Cir.), rev’d on other grounds, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939).
examined Cited "see" United States v. Kenneth Robert Glenn, United States of America v. Manuel J. Benevides (3×)
1st Cir. · 1987 · signal: see · confidence high
See United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939).
examined Cited "see" United States v. Gantt (3×)
unknown court · 1980 · signal: see · confidence high
See United States v. Bruno, 105 F.2d 921 (2d Cir.) rev’d on other grounds, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939); United States v. Rich, 262 F.2d 415 (2d Cir. 1959); United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863 , 80 S.Ct. 119 , 4 L.Ed.2d 102 (1959); United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903 , 94 S.Ct. 2598 , 41 L.Ed.2d 209 (1974); United States v. Tramaglino, 197 F.2d 928 (2d Cir.), cert. denied, 344 U.S. 864 , 73 S.Ct. 105 , 97 L.Ed. 670 (1952).
examined Cited "see" United States v. Samuel Gantt, United States of America v. Milton Charles Smith A/K/A \Creep\" A/K/A \"Shaw\" A/K/A \"Short\" (3×)
unknown court · 1980 · signal: see · confidence high
See United States v. Bruno, 105 F.2d 921 (2d Cir.) rev'd on other grounds, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939); United States v. Rich, 262 F.2d 415 (2d Cir. 1959); United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863 , 80 S.Ct. 119 , 4 L.Ed.2d 102 (1959); United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903 , 94 S.Ct. 2598 , 41 L.Ed.2d 209 (1974); United States v. Tramaglino, 197 F.2d 928 (2d Cir.), cert. denied, 344 U.S. 864 , 73 S.Ct. 105 , 97 L.Ed. 670 (1952).
examined Cited "see" Williams v. United States (3×)
D.C. · 1977 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939).
examined Cited "see" People v. Queen (6×)
Ill. · 1974 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939).
examined Cited "see" State v. Garcia (3×)
N.M. Ct. App. · 1972 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939), where the defendant requested the instruction on failure to testify and the failure to give the instruction was reversible error based upon an Act of Congress.
cited Cited "see" State v. Baxter
Haw. · 1969 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 (1939).
examined Cited "see" Raymond R. Fowle v. United States (3×)
9th Cir. · 1969 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939).
examined Cited "see" United States v. Raymond Anderson (6×)
2d Cir. · 1968 · signal: see · confidence high
See, Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939); United States v. Reiburn, 127 F.2d 525 (2 Cir. 1942).
examined Cited "see" People v. Bernal (3×)
Cal. Ct. App. · 1967 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 [ 84 L.Ed. 257 , 60 S.Ct. 198 ], It appears clear to us that the constitutional privilege against self-incrimination must be contemporaneously evaluated as an expression of personal right and freedom which may not be eroded by expediency whatever its guise or motives.
examined Cited "see" State v. Wallace (3×)
Iowa · 1967 · signal: see · confidence high
See Chapman v. State of California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 , and Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 .
examined Cited "see" Jerry Robert Cloud v. United States (3×)
8th Cir. · 1966 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 .
examined Cited "see" United States Ex Rel. Theodore R. Stovall v. Honorable Wilfred Denno, as Warden of Sing Sing Prison, Ossining, New York (6×)
2d Cir. · 1966 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 [ 60 S.Ct. 198 , 84 L.Ed. 257 ] (1939); Kotteakos v. United States, 328 U.S. 750, 764-65 [ 66 S.Ct. 1239 , 90 L.Ed. 1557 ] (1946); Stewart v. United States, 366 U.S. 1, 9-10 [ 81 S.Ct. 941 , 6 L.Ed.2d 84 ] (1961); Hamilton v. State of Alabama, supra, 368 U.S. 52 [ 82 S.Ct. 157 ], The hurdle is too high for this case.
examined Cited "see" United States v. Frank Piscitello (3×)
2d Cir. · 1956 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 ; United States v. Tannuzzo, 2 Cir., 174 F.2d 177 , certiorari denied Tannuzzo v. United States, 338 U.S. 815 , 70 S.Ct. 38 , 94 L.Ed. 493 .
discussed Cited "see" Adamson v. California (2×)
SCOTUS · 1947 · signal: see · confidence high
It is so, of course, by explicit act of Congress. 20 Stat. 30 ; see Bruno v. United States, 308 U.S. 287 .
examined Cited "see" United States v. Johnson (6×)
3rd Cir. · 1942 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287, 294 , 60 S.Ct. 198, 200 , 84 L.Ed. 257 .
examined Cited "see" Hilliard v. United States (3×)
4th Cir. · 1941 · signal: see · confidence high
See Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 ; Meadows v. United States, 65 App.D.C. 275 , 82 F.2d 881 ; McAffee v. United States, 70 App.D.C. 142 , 105 F.2d 21 ; Little v. United States, 10 Cir., 73 F.2d 861, 867 , 96 A.L.R. 889 ; Shidler v. United States, 9 Cir., 257 F. 620, 624 ; Vandalia R.
examined Cited "see, e.g." Robert Woodall v. Thomas Simpson (4×)
6th Cir. · 2012 · signal: see also · confidence medium
Nos. 09-5352/5406 Woodall v. Simpson Page 8 They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.”); see also Bruno v. United States, 308 U.S. 287, 294 (1939).
Retrieving the full opinion text from the archive…
Bruno
v.
United States
300.
Supreme Court of the United States.
Dec 4, 1939.
308 U.S. 287
1939 U.S. LEXIS 38
Mr. Samuel B. Wasserman, with whom Mr. M. Michael Edelstein was on the brief, for petitioner., Assistant Attorney General Rogge, with whom Solicitor General Jackson and Messrs. William W. Barron, George F. Kneip, Fred E. Strine, and W. Marvin Smith were on the brief, for the United States.
Frankfurter, McReynolds.
Cited by 408 opinions  |  Published
[*291] Mr. Justice Frankfurter

delivered the opinion of the Court.

In affirming the conviction of Jerry Bruno, who, with eighty-seven others, was convicted of a conspiracy to violate the narcotic laws, the Cireüit Court of Appeals for the Second Circuit, dealt with an important question in the administration of federal criminal justice in such a way as to lead us to grant certiorari.

Some of Bruno’s co-defendants took the witness-stand. He did not. The trial court gave the following instructions to the jury regarding the attitude to be observed by them towards the accused as a witness:

“It is the privilege of a defendant to testify as a witness if, and only when, he so elects; and when he does testify his credibility is to be determined in the light of his interest, which usually is greater than that of any other witness, and is therefore a matter which may seriously, affect the credence that shall be given to his testimony.”[*292] Bruno requested this additional instruction:

“The failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.”

The trial judge declined this request, saying “I feel that I’ve already covered that.” The exception to this denial . having been saved, the Circuit Court of Appeals found no error in the refusal, although confessing that the guid-ánce which had been given the jury “was not the equivalent, of what the defendant had requested,” Bruno v. United States, 105 F. 2d 921. By this, we take it,' the court below meant that the topic on which Bruno proffered an instruction had not been charged at all.

Therefore, the narrow question before us is whether in these circumstances Bruno had the indefeasible right to have the jury told in substance what he asked the judge to tell it. The issue is determined by a proper application of the Act of March 16, 1878, 20 Stat. 30, now 28 U. S. C. § 832. [1]

That Act freed the accused in a federal prosecution from his common law disability as a witness. But Congress coupled his privilege to be a witness with the right to have a failure to exercise the privilege not tell against him. The accused could “at his own request but not[*293] ptherwise be a competent witness. And his failure to make such a request shall not create any presumption against him.” Such was the command of the law-makers. The only way Congress could provide that abstention from testifying should not tell against an accused was by .an implied direction to judges to exercise their traditional duty in guiding the jury by' indicating the considerations relevant to the latter’s verdict on the facts. Sparf v. United States, 156 U. S. 51. By legislating against the creation of any “presumption” from a failure to testify, Congress could not have meant to legislate against the psychological operation of the jury’s mind. It laid down canons of judicial administration for the trial judge to the extent that his instructions to the jury, certainly when appropriately invoked, might affect the behavior of jurors. Concededly the charge requested by Bruno was correct. The Act of March 16, 1878, gave him the right to invoke it.

A subsidiary question remains for determination. It derives from the Act of February 26, 1919, 40 Stat. 1181, 28 U. S. C. § 391, [2] whereby appellate courts are under duty in criminal as well as in civil cases to disregard “technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” Is the disregard of the right which Congress gave to Bruno an error, the commission of which we may disregard? We hold not. It would be idle to predetermine the scope of such a remedial provision as § 391 by anticipating the myriad varieties of rulings made in trials and attempting an[*294] abstract, inclusive definition of “technical errors.” Suffice it to indicate, what every student of the history behind the Act of February 26, 1919, knows, that that Act was intended to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict. Of a very different order of importance is the right of an accused to insist on a privilege which Congress has given him.

To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact, it suffices to say that, however difficult it may be to exercise enlightened self-interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose. And when it is urged that it is a psychological impossibility not to have a presumption arise in the minds of jurors against an accused who fails to testify, the short answer is that Congress legislated on a contrary assumption and' not without support in experience. It was for Congress to decide whether what it deemed legally significant was psychologically futile. Certainly, despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify us in disregarding the will of Congress by a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial .court that the failure of an accused to be a witness in his own cause “sháll not create any presumption against him.”

We conclude that the substance of the denied request should have been granted, and the judgment therefore is

Reversed.

Mr. Justice McReynolds concurs in the result.
1

Section 632: “In the trial of all indictments, informations, com.plaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts martial, and courts of-inquiry, in any State or Territory/ including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any

2

Section 391: “All United States courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. On the hearing of any appeal, certiorari, or motion for a new trial, in any case, civil- or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”