Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony.
There is no way for the state to be fully neutral between silence and testimony. Any legal rule that affects testifying and nontestifying defendants differently will have the consequence of penalizing one right or the other, and it would be impossible to remove all such rules from the system. Moreover, because testimony and silence are substitutes—a defendant must exercise one right at trial but cannot exercise both—any rule that penalizes one right necessarily rewards the other. . . .
American law . . . currently reflects an implicit policy preference for silence over testimony. . . . More testimony by criminal defendants would give the jury access to important additional information, increase defendants’ own sense of the legitimacy of the process, and reduce disparities between rich and poor defendants. Legal rules that raise the relative cost of testimony undermine these critically important goals. . . .
Toward that end, I propose three reforms. First, as a matter of constitutional criminal procedure, the Supreme Court should overrule Griffin v. California, and should thus allow prosecutors to argue adverse inferences from a defendant’s silence. Second, as a matter of evidence law, courts should abandon the Gordon v. United States test for Rule 609, and should admit fewer prior convictions for impeachment. Third, as a matter of sentencing law, courts should not impose perjury enhancements based on a defendant’s trial testimony. These three reforms would help to put American criminal law back on the right course by making more defendants speak.
Something similar to the latter two proposed reforms are found in the British criminal justice system where criminal defendants do not testify under oath.