When will a court grant a defendant an instruction that cautions the jury that it may not draw an adverse inference from the fact that a defendant has not testified at trial?

A similar problem has arisen in the Fifth Amendment realm, with respect to an instruction that cautions the jury that it may not draw an adverse inference from the fact that a defendant has not testified at trial. In that context, California courts have held that while such an instruction must be given if requested by the defendant, a trial court has no duty to give the instruction sua sponte in light of the possibility that it would prove more prejudicial than beneficial. (See, e.g., People v. Gardner (1969) 71 Cal.2d 843, 852-854, 79 Cal.Rptr. 743, 457 P.2d 575.) A similar approach--permitting the defendant to assess the relative cost and benefit of a cautionary instruction in a particular case--appears appropriate with regard to the commutation issue.