The Silence Penalty

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

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. T HE P RIOR O FFENDER P ENALTY ............................................... 401 B. T HE S ILENCE P ENALTY ............................................................ 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 Committee approved the study. Rachel Sollecito provided valuable research assistance. 396 IOWA LAW REVIEW [Vol. 103:395 A. E XPERIMENTAL D ESIGN ........................................................... 410 B. R ESULTS ................................................................................. 413 IV. DATA FROM REAL TRIALS .............................................................. 415 A. T HE NCSC “P ARADOX ” ........................................................... 417 B. D EFENDANTS W ITHOUT P RIORS : T ESTIFYING V . N ON -T ESTIFYING ..................................................................... 420 C. D EFENDANTS WITH P RIORS : T ESTIFYING V . N ON -T ESTIFYING ..... 421 D. N ON -T ESTIFYING D EFENDANTS : P RIORS V . N O P RIORS ............... 423 E. A T OUCH OF D ISCORDANT D ATA .............................................. 424 V. IMPLICATIONS ............................................................................... 425 A. D EFENDANTS S HOULD T ESTIFY M ORE O FTEN ............................ 426 B. T HE I NEFFECTIVENESS OF L EGAL D OCTRINE G OVERNING D EFENDANT T ESTIMONY .......................................................... 429 C. D ISTORTIONS OF J URY F ACTFINDING ......................................... 429 D. I NCENTIVIZING G UILTY P LEAS AND E XACERBATING D ISCRIMINATORY I MPACTS ...................................................... 431 VI. CONCLUSION ................................................................................ 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 other 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 infra 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 Anglo-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 398 IOWA LAW REVIEW [Vol. 103:395 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...