The Dilemma of the Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted

• Date: 01 September 2008
• Author: John H. Blume
• Published date: 01 September 2008
• DOI: http://doi.org/10.1111/j.1740-1461.2008.00131.x

The Dilemma of the Criminal

Defendant with a Prior

Record—Lessons from the

Wrongfully Convicted

John H. Blume*

This article examines the conventional wisdom that innocent defendants

will testify on their own behalf at trial. Data gathered from the cases of

persons subsequently exonerated due to DNA evidence demonstrate that

factually innocent defendants with criminal records do not testify on their

own behalf at substantially higher rates than criminal defendants generally.

Why? Ninety-one percent of factually innocent defendants with prior

records declined to testify compared to the 55 percent rate at which defen-

dants with prior criminal records declined to testify in a four-county sample

of criminal cases. Why the difference? In the innocence cases, the primary

reason counsel give for not taking the stand is that many of these individuals

had been previously convicted of a crime, and they did not testify at trial

because of the risk that their credibility would be impeached with evidence

of the prior record, and that, despite any limiting instruction the court

might give, the jury would infer that they were guilty based on their prior

misdeeds. If one assumes that the defendants in a four-county sample are

guilty, and that both the innocence sample and the four-county sample are

reasonably representative, then there is a statistically significant association

between defendants with criminal records failing to testify and innocence.

Because the current legal regime appears to disproportionately discourage

defendants, even factually innocent defendants, from telling their story at

trial, the law should be changed. Only prior convictions for perjury should

be potentially available for impeachment purposes.

*Professor of Law, Cornell Law School, 110 Myron Taylor Hall, Ithaca, NY 14853; email:

jb94@cornell.edu.

I thank Erin Choi, Joanna Davella, Drucy Glass, Matthew Jury, Lei Young, and Amber

Whitfield for their research and data-gathering assistance. I thank Steve Clymer, Sherry Colb,

Ted Eisenberg, George Fischer, Steve Garvey, Sam Gross, Sheri Johnson, and Faust Rossi for

their helpful suggestions and comments.

Journal of Empirical Legal Studies

Volume 5, Issue 3, 477–505, September 2008

© 2008, Copyright the Author

Journal compilation © 2008, Cornell Law School and Wiley Periodicals, Inc.

477

I. Introduction

The conventional wisdom is that innocent defendants testify on their own

behalf. Most people think: “If it were me, and I were charged with a crime I

did not commit, I would put my hand on the Bible, get up on that witness

stand, look those jurors dead in the eye, and tell them that I didn’t do it.

Only guilty people don’t testify.”1The conventional wisdom is wrong. Fred-

erick Daye, for example, was charged with rape, kidnapping, and robbery.

He filed a motion requesting that the trial judge prohibit the prosecution

from impeaching him with a five-year-old robbery conviction. The trial judge

denied the motion, and Daye elected not to testify. He was found guilty of all

charges and sentenced to life in prison. On appeal, the California Court of

Appeal upheld the trial judge’s ruling.2After serving 10 years in prison, a

California court granted Daye’s request for DNA testing. The results conclu-

sively established Daye’s innocence, and he was released.3

Daye’s case is paradigmatic of the controversy surrounding rules of

evidence permitting criminal defendants to be impeached with prior

convictions. Many critics of impeachment have argued that such rules dis-

courage defendants, even innocent ones, from testifying. Proponents of

impeachment, on the other hand, argue that precluding or limiting the

current rules will result in a flood of perjured testimony from guilty defen-

dants liberated from their prior misdeeds. What has been largely missing

from the debate are facts.

1Polling data indicate that approximately half of all Americans believe that a defendant who

does not testify in his or her own defense is guilty. Survey by Fox News and Opinion Dynamics,

February 12–13, 2002. Retrieved April 25, 2008 from the iPOLL Databank, The Roper Center

for Public Opinion Research, University of Connecticut. The reality of a defendant’s silence was

described by Arthur Train in The Prisoner at the Bar as follows:

The law humanely provides that if a prisoner does not wish to testify his failure to do so

shall not be taken against him by the jury. But does anyone imagine that a defendant is not

usually obliged to testify if he expects to be acquitted? The very first thing we want to know

about a person charged with crime is what explanation he has to make. If he refuses to

make any, we know that he has none worth making....Jurorshaveoften said to me,

regarding a defendant who did not take the stand, “Of course, we couldn’t hold against

him his failure to testify, but we knew he was guilty, because he was afraid to subject himself

to cross-examination.”

A. Arthur Train, The Prisoner at the Bar 212 (1923).

2People v. Daye, 222 Cal. Rptr. 614, 624–25 (1986).

3See 〈http://www.innocenceproject.org/Content/83.php〉, accessed May 16, 2008.

478 Blume