Making Defendants Speak

Abstract

This article argues that the legal system should encourage more criminal defendants to testify by reforming the current legal rules to create the proper mix of incentives and disincentives for criminal defendants to take the stand. Two reasons are given as to why defendant's should be encouraged to testify: First it would give the jury access to important additional information, and thereby help the jury reach accurate results. Second, it would increase defendants own participation in the criminal process, which would improve perceptions of legitimacy, thereby aiding rehabilitation and reintegration. The article argues that the current set of legal rules punishes defendants too much for taking the stand, and rewards defendants too much for remaining silent when defendants should be rewarded more for testifying and punished more for declining to testify. The article proposes three reforms which would encourage more criminal defendants to testify: First as a matter of constitutional criminal procedure, the Supreme Court should overrule Griffin v. California and should thus allow prosecutors to argue adverse inferences from a defendant's silence. Second, as a matter of evidence law, courts should alter or abandon the Gordon v. United States test for Rule 609 and admit fewer prior convictions for impeachment. Third as a matter of sentencing law, courts should not impose perjury enhancements based on a defendant's trial testimony.

Keywords: Fifth Amendment, Right to Testify, Right to Remain Silent, Griffin v. California, Gordon v. United States, Defendant Testimony