Academic journal article Iowa Law Review

The Silence Penalty

Academic journal article Iowa Law Review

The Silence Penalty

Article excerpt

I. Introduction

For much of American history, criminal defendants could not testify.1 In fact, it was only a quarter century ago that the Supreme Court swept away the last vestiges of the testimonial prohibition, belatedly recognizing a criminal defendant's constitutional "right to take the witness stand."2 To justify its atextual ruling, the court channeled "the considered consensus of the English-speaking world" that there could be "no rational justification for prohibiting the sworn testimony of the accused."3 Legal commentators applauded. Despite regular appeals to historical intent and textual fidelity in other contexts, judges and academics across the ideological spectrum embrace the upstart constitutional right as an enlightened evolution, akin to the elimination of trial by ordeal.4

It was not always so. As reformers first ushered in an age of defendant testimony through statutes over a century ago, critics predicted dire consequences for the purported beneficiaries of the new right. Commenting on his state's newly enacted statute in 1867, Massachusetts' Supreme Court Justice Seth Ames argued that allowing defendant testimony would "destroy[] the presumption of innocence."5 In light of jurors' inevitably negative reaction to defendants who chose silence, Ames predicted defendants would have "practically no option at all"; the new right will "compel the defendant to testify" and "all will use it."6

Judge Ames was prescient in some respects and spectacularly wrong in others. In particular, his prediction that "all" defendants would testify did not come to pass. In modern times, only about half of criminal defendants take the witness stand.7 Notably, refusing to testify is not limited to guilty defendants. Around 40% of defendants later exonerated by DNA evidence declined to testify at their initial trials.8 As this figure indicates, defendants with important stories to tell frequently sit silently while their attorneys plead their case.9

The remarkable prevalence of defendant trial silence can only be understood by reference to the consequences for those who do take the witness stand. While each case presents a variety of tactical considerations, the most concrete deterrent to testifying is a product of the evidence rules concerning prior crimes.10 In the modern era, most defendants who stand trial have a criminal record that predates the charged crime.11 This nation's ongoing struggle with mass-incarceration suggests that the striking prevalence of trial defendants with prior convictions will only increase in the coming years.12

American evidence rules generally exclude evidence of prior crimes.13 But when defendants testify, their criminal record becomes eligible for admission as "impeachment."14 Once a jury learns of a defendant's record, it is more likely to convict-a phenomenon labeled here the "prior offender penalty."15 For example, famed DNA exoneree Ronald Cotton testified at trial to his innocence of a violent break-in and rape.16 He was then impeached with his past crimes, including "a prior conviction of assault on a female with intent to commit rape and a prior conviction of breaking and entering."17 After hearing of Cotton's earlier convictions, the jury disbelieved his (truthful) claim of innocence and convicted.18

Since the choice to testify belongs to the defendant alone, a common reaction to the looming admissibility of prior crimes is to decline to take the witness stand. The customary defense tactic of remaining silent to avoid impeachment (or other harms) creates a new risk, however.19 When defendants do not testify, they suffer a different penalty-labeled here the "silence penalty." It is the interplay between the "silence penalty" and the "prior offender penalty" that typically determines whether defendants testify, and howjurors react to that choice.20

The shaky historical pedigree and critical tactical importance of defendant testimony should make the topic a subject of spirited academic inquiry. …

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