Most citizens are aware of criminal defendants “taking the Fifth” at their trials, by refusing to testify against themselves. The privilege against self-incrimination–explicitly embedded in the Fifth Amendment–traces its roots to 17th Century reforms to English law demanded by widely persecuted Puritans, who, among other things, were compelled to “out” fellow Puritans who refused to follow the official state Anglican Church. That clause of the Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Over the years, Supreme Court rulings have effectively expanded the application of this Fifth Amendment privilege to the point where not only are prosecutors prohibited from commenting to the jury about a defendant’s refusal to testify at trial, but judges are affirmatively required to instruct juries not to draw an adverse inference against defendants for their decision not to testify. Such decisions were issued on the belief that these and other procedural safeguards were necessary to give full practical effect to the Constitution’s prohibition against compulsory self-incrimination. And there are other reasons defendants are reluctant to take the stand: strict rules (having nothing to do with the Fifth Amendment) govern what evidence or inquiry is permitted in front of the jury when a defendant chooses to testify, and federal sentencing guidelines allow the imposition of enhanced penalties or sentences in cases where the court finds that the defendant has testified falsely. So there are strong disincentives for even the innocent to testify on their own behalf. Currently, many (perhaps even most) criminal defendants choose not to testify at their own trials, usually depriving us of the testimony of the person who knows most about what really happened. Is that good for society? At least one legal commentator thinks not, arguing that “the current system primarily aids the cause of … helplessly guilty defendants by lending credence to the belief that even innocent defendants remain silent at trial.”
Jeffrey Bellin, a former Assistant United States Attorney and now Associate Professor of Law at William & Mary Law School, has argued that by modifying the current “patchwork rules” of evidence and sentencing guidelines that govern criminal trials in our country, the Fifth Amendment privilege against self-incrimination can be preserved, while greatly increasing the percentage of defendants who testify. For instance, eliminating the use of evidence of a defendant’s prior convictions to impeach a defendant’s credibility, Bellin argues, would eliminate the strongest disincentive to defendant testimony. After all, the jury, knowing of the defendant’s strong interest in the trial’s outcome, will already cast a skeptical eye on the defendant’s credibility. If prior conviction evidence is prohibited, and other rules (“compelled neither by constitutional law nor historical precedent”) that deter testimony are modified or eliminated, Bellin suggests that prosecutors should then be allowed to comment on the defendant’s failure to testify without violating the Fifth Amendment. Noting that recent scholarship has demonstrated that early American criminal trials typically featured the introduction of pre-trial statements given by defendants to a justice of the peace, and defendants typically presented their own defense at trial without aid of an attorney, Bellin states that these reforms would bring our criminal justice system closer to the “discarded intuition of the early American courts–that hearing from the defendant will invariably illuminate, rather than darken, the path to truth.” // Michael Racette
