US SUPREME COURT DECISIONS

In petitioner's criminal trial in a Kentucky state court, the judge overruled defense counsel's request that "an admonition be given to the jury that no emphasis be given to the defendant's failure to testify." Petitioner was convicted, and on appeal he argued that the trial judge's refusal to charge the jury as requested violated Carter v. Kentucky, 450 U. S. 288, which held that, in order fully to effectuate the right to remain silent, a trial judge must, if requested to do so, instruct the jury not to draw an adverse inference from the defendant's failure to testify. Conceding that Carter requires the trial judge, upon request, to give an appropriate instruction, the Kentucky Supreme Court held that the trial court properly denied petitioner's request because there was a "vast difference" under Kentucky law between an "admonition" and an "instruction," and petitioner, who would have been entitled to an "instruction," had requested only an "admonition."

Held:

1. In the circumstances of this case, the failure to respect petitioner's constitutional rights is not supported by an independent and adequate state ground. Pp. 466 U. S. 344-351.

(a) Kentucky generally distinguishes between "instructions" -- which tend to be statements of black-letter law setting forth the legal rules governing the outcome of a case -- and "admonitions" -- which tend to be cautionary statements regarding the jury's conduct, such as statements requiring the jury to disregard certain testimony. However, the substantive distinction between admonitions and instructions is not always clear or closely hewn to, and their content can overlap. Nor is there strict adherence to the practice of giving admonitions orally only, while giving instructions in writing as well. Pp. 466 U. S. 345-348.

(b) For federal constitutional purposes, petitioner adequately invoked his substantive right to jury guidance, and Kentucky's distinction between admonitions and instructions is not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights. To insist on a particular label for the statement to the jury required by Carter would "force resort to an arid ritual of meaningless form," Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 320, and would further no perceivable state interest. Pp. 466 U. S. 348-349. chanrobles.com-red

Page 466 U. S. 342

(c) This is not a case, as asserted by the State, of a defendant attempting to circumvent, as a matter of deliberate strategy, a firm state procedural rule that instructions be in writing. The record reveals little to support the State's view of petitioner's request, a single passing reference to an "admonition" being far too slender a reed on which to rest the conclusion that petitioner insisted on an oral statement and nothing else. Where it is inescapable that the defendant sought to invoke the substance of his federal right, the asserted state law defect in form must be more evident than it is here. Pp. 466 U. S. 349-351.

2. Evaluation of the State's contention that any Carter error here was harmless is best made in state court before it is made in this Court. Pp. 466 U. S. 351-352.

647 S.W.2d 94, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST J., filed a dissenting statement, post, p. 466 U. S. 352. MARSHALL, J., took no part in the decision of the case.