The Silence Penalty

• Author: Jeffrey Bellin
• Position: Professor, William & Mary Law School
• Pages: 395-434

395

The Silence Penalty

Jeffrey Bellin

ABSTRACT: In every criminal trial, the defendant possesses the right to

testify. Deciding whether to exercise that right, however, is rarely easy.

Declining to testify shields defendants from questioning by the prosecutor and

normally precludes the introduction of a defendant’s prior crimes. But silence

comes at a price. Jurors penalize defendants who fail to testify by inferring

guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence

from mock juror experiments—including the results of a new 400-person

mock juror simulation conducted for this Article—and data from real trials.

It concludes that the penalty defendants suffer when they refuse to testify is

substantial, rivaling the more widely-recognized damage done to a

defendant’s trial prospects by the introduction of a criminal record. Moreover,

these two penalties work in tandem, creating a “parallel penalty” effect that

systemically diminishes the prospects of acquittal and incentivizes guilty

pleas.

The empirical evidence surveyed, including the new juror simulation, will be

of obvious interest to participants in the criminal justice system. But, as the

Article explains, the data also present a powerful indictment of the system

itself.

I.INTRODUCTION ............................................................................. 396

II. DECIDING WHETHER TO TESTIFY OR REMAIN SILENT ................... 401

A.THE PRIOR OFFENDER PENALTY ............................................... 401

B.THE SILENCE PENALTY ............................................................ 407

III.COMPARING THE PARALLEL PENALTIES: A MOCK JUROR

EXPERIMENT ................................................................................. 410

 Professor, William & Mary Law School. I wish to thank Adam Gershowitz, Paula

Hannaford-Agor, Chris Slobogin, and Neil Vidmar, as well as the participants in both the

Vanderbilt Criminal Justice Roundtable and the Neighborhood Criminal Justice Roundtable at

William & Mary, for helpful comments on earlier drafts of this paper. The Institute of Bill of

Rights Law at William & Mary Law School funded the empirical study reported in this paper; the

College of William & Mary Protection of Human Subjects Commit tee approved the study. Rachel

Sollecito provided valuable research assistance.

396 IOWA LAW REVIEW [Vol. 103:395

A.EXPERIMENTAL DESIGN ........................................................... 410

B.RESULTS ................................................................................. 413

IV. DATA FROM REAL TRIA LS .............................................................. 415

A.THE NCSC “PARADOX” ........................................................... 417

B.DEFENDANTS WITHOUT PRIORS: TESTIFYING V.

NON-TESTIFYING ..................................................................... 420

C.DEFENDANTS WITH PRIORS: TESTIFYING V. NON-TESTIFYING ..... 421

D.NON-TESTIFYING DEFENDANTS: PRIORS V. NO PRIORS ............... 423

E.A TOUCH OF DISCORDANT DATA .............................................. 424

V.IMPLICATIONS ............................................................................... 425

A.DEFENDANTS SHOULD TESTIFY MORE OFTEN ............................ 426

B.THE INEFFECTIVENESS OF LEGAL DOCTRINE GOVERNING

DEFENDANT TESTIMONY .......................................................... 429

C.DISTORTIONS OF JURY FACTFINDING ......................................... 429

D.INCENTIVIZING GUILTY PLEAS AND EXACERBATING

DISCRIMINATORY IMPACTS ...................................................... 431

VI. CONCLU SION ................................................................................ 433

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

1. See McGautha v. California, 402 U.S. 183, 214 (1971) (“[A]t the time of framing of the

Fifth Amendment and for many years thereafter the accused in criminal cases was not allowed to

testify in his own behalf . . . .”).

2. Rock v. Arkansas, 483 U.S. 44, 49 (1987); cf. State v. McKenzie, 303 A.2d 406, 413 (Md.

Ct. Spec. App. 1973) (“The right to testify is not constitutional, but statutory.”).

3. Rock, 483 U.S. at 50 (quoting Ferguson v. Georgia, 365 U.S. 570, 582 (1961)).

4. See United States v. Dunnigan, 507 U.S. 87, 96 (1993) (explaining in a 9-0 decision that

“[t]he right to testify on one’s own behalf in a criminal proceeding is . . . a right implicit in the

Constitution”); Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring) (“It is well

established that the defendant has the right to testify on his own behalf, a right we have found

2018] THE SILENCE PENALTY 397

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

essential to our adversary system.”); Ferguson, 365 U.S. at 581–83 (collecting commentary from

judges and academics); Daniel J. Capra & Joseph Tartakovsky, Why Strickland is the Wrong Test for

Violations of the Right to Testify, 70 WASH. & LEE L. REV. 95, 147 (2013) (arguing for more robust

protections of the right to testify, saying that “[w]e should simply speak of an independent ‘right

to testify,’ an undisputed guarantee ‘implicit’ in the Due Process, Self-Incrimination, and

Compulsory Process Clauses”); Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian (!?)

Analysis and A Proposed Overhaul, 38 UCLA L. REV. 637, 666 (1991) (“[T]he right to testify in

one’s own defense, although of far more recent vintage than some oth er rights of a criminal

defendant, must now be considered as one of the most fundamental in our jurisprudence.”

(footnote omitted)); Raymond J. McKoski, Prospective Perjury by a Criminal Defendant: It’s All About

the Lawyer, 44 ARIZ. ST. L.J. 1575, 1642–43 (2012) (describing the right to testify as a “cherished

constitutional right[]” that is “engrained in the fabric of the legal system”).

5. Testimony of Persons Accused of Crime, 1 AM. L. REV. 443, 444 (1867). For a comprehensive

description of Judge Ames’s (and others’) objections and a discussion of the attribution of the

quoted document to Ames, see GEORGE FISHER, PLEA BARGAINING’S TRIUMPH 104 & n.31 (2003).

6. Testimony of Persons Accused of Crime, supra note 5, at 444, 446.

7. See Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect

of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 CORNELL L. REV. 1353,

1373 tbl.2 (2009) (summarizing findings from the broad study of felony trials); Gordon Van

Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 483 (1992)

(“[I]nquiries with trial lawyers and judges lead me to believe that the extent of defendant refusals

to testify is considerable—from one-third to well over one-half in some jurisdictions.”).

8. See i nfra note 183 and accompanying text (discussing DNA-exoneration studies that

reveal a high percentage of innocent defendants who declined to testify).

9. See John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. CHI. L. REV. 263, 283–84

(1978) (“It is one of the great peculiarities of modern An glo-American procedure, on which

Continental observers often remark, that we have so largely eliminated the accused as a testimonial

resource.”); Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C. L. REV. 563, 575 (2014)

(summarizing the negative consequences of silent defendants); Christopher Slobogin, Lessons from

Inquisitorialism, 87 S. CAL. L. REV. 699, 707 (2014) (arguing that the American adversary system can

“contribute to inaccuracy during trial” by “prevent[ing] the factfinder from hearing from the

defendant, despite the fact that the defendant is probably the single most important source of