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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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