The Empty Right To Remain Silent

An empirical study of 400 mock jury trials show that the practical harm to a defendant involved in choosing to remain silent in criminal trial is comparable in magnitude to the harm associated with disclosing a defendant's criminal record at trial, even though jurors are always expressly instructed not to make any negative inference from a defendant's failure to take the stand in a criminal jury trial.

Jeffrey Bellin (William & Mary Law School) has posted The Silence Penalty (Iowa Law Review, Forthcoming) on SSRN. Here is the 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.