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.