Improving the Reliability of Criminal Trials Through Legal Rules that Encourage Defendants to Testify

Abstract

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. Consequently, the Article proposes two alternative reforms designed to eliminate, or at least minimize, the legal inducements to remaining silent at trial. The reforms, if adopted, would encourage a greater number of defendants to testify (and be cross-examined), funneling more factual information into the crucible of the adversary process, and thereby increasing the reliability of trial outcomes.

Keywords: right to remain silent, fifth amendment, defendant testimony, self-incrimination, prior convictions, griffin