But The Defendant Didn’t Testify

This is another “dirty little secret” post about the inner workings of a criminal jury trial.  Under the Fifth Amendment, the defendant has an absolute right not to testify at trial, just as he has a right to give evidence on his own behalf if he chooses to. No big issue here.

But it’s only human to expect a person to explain things or deny guilt. And jurors, if anything, are only human.  In some respects, it’s reminiscent of trying to argue to a jury that a confession was false and coerced, both in the sense that jurors refuse to believe that anyone would falsely admit to a crime they didn’t commit (who would ever do such thing?) and that if a person didn’t commit a crime, he would want to say so. In the mind of most people, the idea that they wouldn’t seize the opportunity to deny guilt is inconceivable.

When a defendant decides not to testify in a New York court, he can request an instruction to the jury :

Defendant Not Testifying

The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.

Kinda tugs at the heartstrings, right? That’s it. That is the sum total of the instruction. Try that out on someone and see if it changes the entire course of human nature.

There are reasons for a defendant not to testify, ranging from the introduction of prior bad acts or criminal convictions, which may have no bearing on the commission of the crime for which he’s on trial, but clearly serve to suggest that he’s of a criminal ilk and has a propensity to commit crimes, to the defendant not being particularly bright or well-spoken.

Testifying in a criminal case is extremely difficult, which is why police are trained in the academy how to do so and appear credible and deflect when caught in a lie.  While defendants can be prepared for trial testimony, it doesn’t serve to overcome either their history or innate lack of ability, or any of the many other deficits or problems they may bring to the stand.

Even defendants with clean backgrounds, a decent education and of reasonable intelligence tend to testify poorly. Giving testimony is entirely different than engaging in normal conversation, and under the immense pressure of the witness stand, even the best, most innocent defendant can fall apart, get angry or misspeak. When that happens the consequences are disastrous. And most defendants don’t fit the bill anyway.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest.

Interest/Lack of Interest

You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.

[Note: Add if appropriate:

A defendant who testifies is a person who has an interest in the outcome of the case.]

In other words, it’s up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased.

Does a defendant have a motive to lie? Not if he’s innocent. Does the defendant have an interest in the outcome? You bet.  But that doesn’t mean it’s a bad thing, though anyone trying to argue the point will get a smackdown by the court that will resonate through the jury room until the verdict comes in. The defendant’s interest is to be acquitted. If he’s innocent, as he’s theoretically presumed to be, this isn’t an affront to the trial.  And yet, that’s exactly what the instruction says. The defendant wants to be found not guilty, so unlike every other witness at trial, the jury must infer that self-interest infects his testimony. He can’t be believed.

Non-lawyers are shocked to learn that there is nothing to be done to explain legitimate reasons why a defendant who, in the minds of ordinary folk, should testify and either explain what happened or deny his guilt.  The lawyer isn’t permitted to do so, and the judge won’t allow it. Even to try is to invite commentary by the court that will impugn the defense and the defendant. 

Not only will the jurors persist in their expectation that any innocent defendant would take the stand, but their expectation will be reinforced by the judge’s admonition about trying to circumvent the lack of testimony.  In the worst case scenario, the judge will say the defense “opened the door” to the issue of the defendant not testifying, and allow the prosecution to offer its view on why this lying, scum criminal wouldn’t subject himself to the search for truth.

Much as inroads are being made with regard to such issues as false confession, the unreliability of eyewitness identification, there has been little concern about the impact of the non-testifying defendant and the instructions given the jury, or the ability to argue to the jury.  While the former happens with relative rarity, the impact of the non-testifying defendant is pervasive, happening in most cases and suffering from the same infirmity.

This is a monumental gap in the fairness of a trial.  Like it or not, every juror thinks the defendant ought to testify. Like it or not, the jury instruction is worthless to change a juror’s expectation. Like it or not, the impact to the defendant is devastating. And it happens all the time.

15 thoughts on “But The Defendant Didn’t Testify

  1. Eric L Mayer

    When training new defense counsel, the 5th Amendment was always an interesting discussion. It went something like this:

    Me: Your client is a Sergeant First Class, he has to take the stand and explain what happened, if you want a shot at winning this thing.

    Junior DC: But, he has a 5th Amendment right to remain silent.

    Me: I know, but the [jury] expects to hear from him because of his rank, age, perceived maturity, and several other things.

    JDC: But, the judge gives them an instruction, right?

    Me: …

    After that, the conversation becomes a bit one-sided as we talk about differences between law/rules and reality.

  2. SHG

    When they’re busy teaching law students all about those fabulous rights we occasionally get from the Constitution, they don’t do much to explain how exactly it works out when you actually use those rights.  Oops.

  3. Jamison

    “Defendant Not Testifying
    The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.”

    Leave it to New Yorkers to be so direct.

    No surprisingly, we in D.C. are a tad bit wordier:

    “Every defendant in a criminal case has an absolute right not to testify. The defendant in this case has chosen to exercise this right. You must not hold this decision against him, and it would be improper for you to speculate as to the reason or reasons for his decision. You must not assume the defendant is guilty because he chose not to testify.”

    These extra words, I am sure, do the trick.

  4. SHG

    At least the D.C. flavor says “you must not hold this decision against him,” as opposed to the “inference unfavorable” language.  Because we all chat about inferences unfavorable at cocktail parties all the time.

  5. Michael Drake

    Then there’s the juror in federal court talking about the case, after the jury had received the usual instructions and brought back the usual verdict: “I’m not sure I totally bought the government’s case. But I kind of had a problem with the fact that the defendant didn’t testify.”

  6. SHG

    If he didn’t do it, why didn’t he just say so?

    If you have nothing to hide, why won’t you let me search?

    The court properly instructed the jury and they are bound to adhere to the court’s instructions.

    And other fairy tales.

  7. Colin Glassey

    I think we should return to the days (pre 1900) when defendants were forbidden from giving testimony. I suspect the benefits of allowing it are outweighed by the costs.

  8. SHG

    At least it would eliminate the taint for the non-testifying defendant. But what of the defendant who can and does testify, and whose testimony is necessary? He’s screwed.

  9. Ken Mackenzie

    Judges in Queensland are advised to re-inforce the message –

    The defendant has not given [or called] evidence. That is his right. He is not bound to give [or to call] evidence. The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and you must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.1

  10. Ken Mackenzie

    But in the United Kingdom the jury is now allowed to draw an inference (they also see no benefit in a written Constitution or Bill of Rights).
    – “it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.”
    Section 35 Criminal Justice and Public Order Act 1994

  11. Bk PD

    I’ve tried to overcome the interested witness charge with US v Brutus, 505 F3d 80 and US v Gaines, 457 F3d 238. They’re both 2d Circuit and have some pretty good language about how the instruction undermines federal due process and the presumption of innocence. Of course, convincing a state court judge that the 2d Circuit should be binding on him is a whole different argument.

  12. SHG

    Trying to get a state judge to deviate from the pattern jury instructions at all is nearly impossible. The problem is that the CJI are truly awful.

  13. G Thompson

    Are you suggesting that law students should be taught about the reality of court, human psychology, and how things actually work?

    hmmm interesting concept. Now all you need are law professors &/or lecturers who actually have that experience of reality 😛

  14. G Thompson

    In New South Wales, Australia the suggested direction is a bit more involved: [directly from Criminal Trial Courts Bench Book]
    [The accused] has not given [or called] any evidence in response to the Crown’s case. There are a number of important directions of law which I must give you in relation to that fact.

    Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon [him/her] to do so.

    As I have already pointed out, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged.

    [The accused] bears no onus of proof in respect of any fact that is in dispute. I remind you that [he/she] is presumed to be innocent until you have been satisfied beyond reasonable doubt by the evidence led by the Crown that [he/she] is guilty of the offence charged. Therefore, it follows that [the accused] is entitled to say nothing and make the Crown prove [his/her] guilt to the high standard required.

    I direct you, as a matter of law, that [the accused’s] decision not to give evidence cannot be used against [him/her] in any way at all during the course of your deliberations. That decision cannot be used by you as amounting to an admission of guilt. You must not draw any inference or reach any conclusion based upon the fact that [the accused] decided not to give (or call) evidence. You cannot use that fact to fill any gaps that you might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

    You must not speculate about what might have been said in evidence if [the accused] had given evidence (or what might have been said by [name of person] if that person had been called by the accused as a witness in the trial).

    Personally I always cringe at the “must not speculate” part in the end. Yeah right like that would never happen

  15. Josh

    I can’t talk about the way American juries tend to behave but here in England they are quite unpredictable when it comes to how they view the right to silence. Until 1994 we had an “absolute” right to silence and a very simple caution given on arrest (You do not have to say anything, anything you do say may be given in evidence). Now we have a much wordier caution (the words, “but it may harm your defence if you do not mention, when questioned, something which you later rely on in court” are inserted into the middle of the caution). In essence, the judge can permit the jury to make an adverse inference. I personally hate that this is done, it reverses the presumption of innocence in a small but crucial way.

    In practice many people who make no comment at the police station are acquitted. I think jurors are humane and sensitive enough to realise that someone who is charged with a serious crime and whose solicitor (pre-trial lawyer) advises them to make no comment in interview will do so whether they are guilty or innocent. Juries don’t always extend this much understanding to people who make no comment in relation to less serious, less complex allegations though. And they are also less understanding of people who don’t testify in court.

    Of course, in theory at least, the adverse inferences a jury is entitled to draw only come into play if you fail to mention something which you rely on. If your defence simply consists of putting the prosecution to proof then the judge will not permit an adverse inference to be drawn. Still, as others have said humans being the way they are often want an accused man to jump up and down proclaiming his innocence to earn an acquittal.

    Still, even with the legislative framework here surrounding the right to silence and adverse inferences it is often the best thing to make no comment. Why? Well, because many, many prosecutions would never be brought if the detainee had simply said nothing. The police are trained interrogators and they use the words of naive people to fill in the gaps and to help build the prosecution case against them.

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