The Dilemma of the Criminal Defendant With a Prior Record - Lessons from the Wrongfully Convicted

Abstract

This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why' The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might give, the jury would infer that they were guilty based on their prior misdeeds. Because the current legal regime discourages defendants, even factually innocent defendants from telling their story at trial, the law should be changed. Only prior convictions for perjury should be potentially available for impeachment purposes.