Should The Criminal Justice Process Make It Easier For Defendants To Testify?

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. 

This Article argues that this silencing is also a massive democratic and human failure. 

Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. 

Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. 

Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. 

This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the context of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system.

Alexandra Natapoof, "Speechless: The Silencing Of Criminal Defendants" 80 New York University Law Review 1449 (2005).

The body text goes on to note that:

The United States's criminal justice system is shaped by a fundamental absence: Criminal defendants rarely speak. From the first Miranda warnings through trial until sentencing, defendants are constantly encouraged to be quiet and to let their lawyers do the talking. And most do. Over ninety-five percent never go to trial, only half of those who do testify, and some defendants do not even speak at their own sentencings. As a result, in millions of criminal cases often involving hours of verbal negotiations and dozens of pages of transcripts, the typical defendant may say almost nothing to anyone but his or her own attorney.

Natapoof cites for the percentage of cases that never go to trial: BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbls. 5.17 & 5.46 (2002).

Natapoof cites for the percentage of cases that go to trial in which defendants do not testify: Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311, 329-30 (1991) (describing 1980s Philadelphia study where forty-nine percent of felony defendants and fifty-seven percent of misdemeanor defendants chose not to testify).

Notably, at least one study, found that statistically juries, in practice, penalize defendants who do not testify by a margin similar to those who do testify and have their prior criminal records revealed in the process. So the benefits of not testifying, in terms of jury outcomes, may be illusory. As the abstract of that 2017 article explains (emphasis added):

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.

Also notably, the British criminal justice system establishes fewer penalties for a defendant's testimony, who is unsworn and hence not punishable by a perjury prosecution, and which is not subject to impeachment by a defendant's prior criminal record.