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December 11, 2020
Why do so few men and women charged with a crime
exercise their constitutional right to testify in their own defense?
The answer is complicated.
Let’s start with the fact that in state and federal
courts only a small percentage of cases even go to trial. According to the Pew
Research Center, in 2018 nearly 80,000 people were prosecuted in federal
criminal court - only 2% went to trial.
Choosing to go to trial can be a risk. One concern
is the “trial penalty,” a widely lamented tool of prosecutors used to punish
people who go to trial more harshly than similarly situated defendants who plea
bargain.
In some jurisdictions, including federal court, the
gap between sentences has gotten so wide that defense attorneys have coined the
phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid
the draconian punishment for exercising their right to trial.
Some experts say the process has become so coercive
in state and federal courts, that defendants weigh their options based on the
relative risks of facing a judge and jury rather than simple matters of guilt
or innocence.
Once that seemingly bold, and exceedingly rare,
decision to go to trial is made, a whole host of other issues must be
considered. The decision to testify is a strategic one. It wasn’t long ago when
defense attorneys made the decision about whether their clients would testify.
In 1987, the U.S. Supreme Court changed all that, when it decided that the
decision to testify was a “personal and fundamental constitutional right.”
The government has the burden of proving a defendant
guilty beyond a reasonable doubt - the defendant has no obligation to prove
anything.
That is the law, but there are times the jury wants
to hear the defendant’s side of the story. There are risks that come with
testifying. A defendant’s criminal record, which may otherwise have been kept
from the jury, can be used to impeach the defendant’s credibility if he or she
takes the witness stand.
Professor Anna Roberts of Seattle University Law
School wrote in a 2016 law review article, “A recent study of DNA exonerees
revealed that, despite their factual innocence, 91% of those with prior
convictions waived their right to testify at trial. The most common reason
given by their counsel was the fear of the impact of impeachment.”
According to Roberts the fear was justified
“allowing the jury to learn of a defendant’s criminal record increases the rate
of conviction by as much as 27%.”
Testifying in front of a robe-draped judge, in an
ornate courtroom, in front of 12 strangers who will decide your fate can be
daunting. What kind of witness will the defendant make? Is the defendant
friendly? Is she articulate? Does she understand the gravity of the situation?
Does she have a temper or tendency to fly off the handle?
No matter how well prepared to testify, a defendant
will be subject to cross-examination. The process can be grueling and can
reveal holes in the defendant’s story that can result in a conviction.
The other option for a defendant at trial is
silence. A silent defendant can leave a jury wondering why the defendant didn’t
refute the charge - although a defendant has no obligation to present an
alternative to the prosecution’s case.
More importantly, the defendant who remains silent
loses an opportunity to win over the jury.
In a 2008 study, Daniel Givelber and Amy Farrell
found an increase in the percentage of acquittals when the jury heard from the
defendant. When a jury heard from both the defendant and other witnesses on the
defendant’s behalf, the acquittal rates rose substantially.
To testify, or not to testify, is the question - the
answer is ... complicated.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter at @MatthewTMangino.
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