Damned If They Do, Damned If They Don't Jurors' Reaction to Defendant Testimony or Silence during a Capital Trial

By Antonio, Michael E.; Arone, Nicole E. | Judicature, September/October 2005 | Go to article overview

Damned If They Do, Damned If They Don't Jurors' Reaction to Defendant Testimony or Silence during a Capital Trial


Antonio, Michael E., Arone, Nicole E., Judicature


During the infancy of American legal thought, a fierce debate raged over whether the accused should be given the opportunity to speak at his or her own trial.1 For the past century, the U.S. Supreme Court has consistently found that, while the accused has the constitutional right to testify on his or her own behalf, he or she also possesses the right not to testify: "The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement-the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence."2

But how do jurors, those individuals called upon to decide another's fate, react when the accused does not speak in court? Does the accused truly suffer no penalty at the hands of a jury for invoking the right not to testify? This article presents evidence about jurors' reaction to defendant testimony or silence during a capital murder trial as revealed through extensive in-depth interviews with actual jurors who made the critical life-or-death decision. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with the support of the National Science Foundation. The findings raise important questions about how jurors interpret defendant testimony or silence inside the courtroom and how they use this information in deciding about guilt and punishment.

Studies have found that jurors often report confusion when a criminal defendant waives the right to testify.3 They do not understand why the accused would give up the right to tell his or her side of the story, and often conclude that the defendant has something to hide. Moreover, researchers have found that instructions to the jury not to draw any adverse conclusions from the fact that the accused did not testify often fall on deaf ears.

Richard Friedman wrote, "The accused's failure to testify affirmatively raises the jurors' probability assessment of guilt from the baseline level. No matter how vigorously the court instructs the jurors not to take into account that failure to testify, they are almost certain to do so."4 Similarly, Supreme Court Justice Potter Stewart opined: "whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind ... [and] the danger exists that the inferences drawn by the jury may be unfairly broad."5

Given the likelihood that jurors may draw adverse inferences from silence, why would a defendant refuse to take the stand? Legal professionals have noted several legitimate reasons: it keeps the pressure of the burden of proof on the state and prosecuting attorney;1' the testimony might leave a bad impression on the jury, particularly if the defendant is not fit emotionally or psychologically to take the witness stand in front of a courtroom full of people;7 or the defense may want to avoid introducing information to the jury about the defendant's prior criminal record.8

Regardless of why a defendant does not testify, remaining silent at trial can be problematic and places a burden on the defendant and the courts. By testifying, a defendant may be able to offer new insight to the jury on previously ambiguous evidence. More important, hearing what the defendant has to say may "be highly relevant to the issue of guilt or innocence."9 For these reasons, it is important that the defendant have the opportunity to testify at trial, as free as possible from the worry that his or her statements will have a detrimental effect on the outcome.

The Capital Jury Project

The Capital Jury Project (CJP) is a national study of the decision making of capital jurors conducted by a consortium of university-based researchers with the support of the National Science Foundation. …

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Damned If They Do, Damned If They Don't Jurors' Reaction to Defendant Testimony or Silence during a Capital Trial
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