TBA Law Blog


Posted by: Wade Davies on Mar 1, 2018

Journal Issue Date: Mar 2018

Journal Name: March 2018 - Vol. 54, No. 3

One of the most beautiful aspects of our justice system is that we have no inquisition. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Article 1, Section 9 of the Tennessee Constitution provides that the accused “shall not be compelled to give evidence against himself.” The prosecution cannot comment on the accused’s failure to testify. The accused can’t be penalized in a criminal case for declining to testify.[1]

I’ve often been inclined to advise clients to embrace and relish this important right. I’ve told countless people to keep their mouths firmly shut. I tell them many people talk their way into the penitentiary but very few talk their way out. (This is especially true in the investigation stage but often at trial as well).

We all acknowledge the importance of the decision whether to submit to an interview or to testify at trial. The right against self-incrimination is so important that it is deemed a fundamental right that only the defendant can personally waive. It isn’t up to defense counsel to make the decision.[2] But is there any research with empirical data to help us help clients make these decisions?

This part of trial practice is truly confusing because there are truisms that contradict each other. First, we think jurors expect to hear from the defendant. Second, if a client testifies, the presumption of innocence and the burden of proof go out the window and the jury focuses on whether they believe the client. Those both make sense but may not help the client make the decision.

Under Tennessee case law, at trial, defendants have to be advised of the right not to testify and the right against adverse inferences, the right to testify, and “the advantages and disadvantages of testifying.”[3]

It is that “advantages and disadvantages” part that gets tricky. So I tried to find some literature to help us figure this out. I learned that the research is scarce, but I hope there is enough at least to consider in helping our clients make these decisions.

One thing does appear clear. If taking the stand causes the jury to learn about an otherwise inadmissible conviction, the chance of conviction goes way up. There have been surveys from real jurors as well as studies using mock jurors, and most of the studies show that knowledge of a prior criminal record causes jurors to lean towards a finding of guilt.[4] And it wasn’t based on a finding that the prior conviction impeached the defendant’s credibility — the theoretical reason for letting in prior convictions under Federal and Tennessee Rule of Evidence 609. It seems to be based on propensity.[5]

Otherwise, it is hard even to find statistics on whether more defendants who testify are acquitted than defendants who don’t take the stand. In our firm we’ve advised clients that we’ve seen more people acquitted without putting on proof.

But is there more than anecdotal data? One study I found, in which mock jury studies were used with variables regarding whether the defendant testified and whether as a result of taking the stand prior convictions were introduced, produced the earthshattering result that jurors “were suspicious of the defendant regardless of whether or not he testified, or whether he had a criminal record.”[6] We probably knew that. It is also debatable whether a study using 154 undergraduates as mock jurors gives us anything of value to use with real jurors. This 2009 study contained a literature review that was primarily interesting because most of the prior studies were very old. But the basic finding was that mock jurors were not particularly influenced by whether a defendant testified, which the authors interpreted as a positive sign that jurors follow instructions and are not overly influenced by improper factors.[7] This finding seems to be consistent with a 1985 review that concluded that the decision of whether to testify was not a determining factor in isolation but was something that could only be evaluated in combination with other factors like whether the defendant was asserting an alibi, or whether the testimony would cause the introduction of prior convictions. Interestingly, the study claimed that merely denying allegations was generally ineffective.[8]

There has been some effort to collect data from real trials. In the early 2000s, the National Center for State Courts collected data from judges, prosecutors and defense counsel. The best examination of this data was completed in order to test whether judges or juries are more likely to acquit. That is a question for another day, but there is significant social science research indicating judges are much more likely to convict and report they would have convicted even when a jury acquitted.[9]

This 2008 study does contain thought-provoking statistics regarding acquittal and defense testimony. First, the analysis indicated an increase in the percentage of acquittals when the jury heard from the accused. In addition, when both the accused and other defense witnesses testified, the acquittal rates rose substantially.[10] The explanation is that jurors are more likely to accept an alternative to the prosecution’s theory of guilt when it is presented in terms of a story, supported by witnesses. This point makes sense — the testimony and story might resonate based on the juror’s prior experiences rather than just presenting the argument that the State didn’t do a good enough job.[11] Some of the data even seem to indicate that acquittal rates go up when the defense presents witnesses other than the accused and the accused does not testify. I’ve always tried to avoid this scenario if possible, thinking that the jury would think it odd if we presented other witnesses but not the defendant. I’ve always thought that not putting on proof at all could send a signal that we believed the prosecution had not proved its case but that putting on others but not the defendant might indicate the defendant had something to hide. I won’t let these numbers control my decisions, but they are worthy of consideration.

Some good lawyers feel strongly that the jury wants to hear from the accused and that the defendant should testify whenever defense counsel can ethically put the client on the stand. Other lawyers concentrate more on what can go wrong when a defendant testifies. While it appears that the social science research on this issue is not at all complete, a few helpful facts can be gleaned. First, the jury would like to hear from the defendant. Second, however, and just as important, juries generally will follow the instruction not to hold it against a defendant if he or she does not testify. While some data indicate that acquittal rates go up when only the defendant testifies, some of that could be the result of the cases where a defendant can take the stand are ones with weaker proof. Finally, we should emphasize that jurors relate best to cases that are presented in the form of an alternative story to which they can relate — rather than just a denial or challenge to the sufficiency of the case. A skilled defense lawyer may also be able to tell that story through cross-examination and documents without having to call the defendant or other witnesses.

No matter how much data there is, counsel will always have to make the recommendation based on the facts and the feeling of the particular case. The most important factor will always be how good a witness the defendant will be. We’ve all seen well-prepared witnesses who have a story to tell go down in flames on cross-examination. While we can look at statistics, in the end the lawyer will still have to rely on an evaluation of the defendant’s ability as a witness, evidentiary issues and whether the testimony presents a strong alternative narrative.

Notes

  1. Griffin v. California, 380 U.S. 609 (1965).
  2. Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999).
  3. Id. at 162.
  4. Theodore Eisenberg and Valerie P. Hans, “Taking a Stand on Taking the Stand: The Effect of A Prior Criminal Record on the Decision to Testify and on Trial Outcomes,” 94 Cornell L. Rev. 1353, 1358 (September 2009).
  5. Id., 94 Cornell L. Rev. at 1388.
  6. Shayne Jones and Melissa Harrision, “To Testify or Not to Testify – That Is the Question: Comparing the Advantages and Disadvantages of Testifying Across Situations,” Applied Psychology in Criminal Justice, 2009 v. 5(2), p. 165.
  7. Id. at 176.
  8. “Defendant’s Testimony,” (from Psychology of Evidence and Trial Procedure, P 124-149, 1985, Saul M. Kassin and Lawrence S. Wrightsman, eds.
  9. Daniel Givelber and Amy Farrell, “Judges and Juries: The Defense Case and Differences in Acquittal Rates,” Law & Social Inquiry, Vol. 33, Issue 1, 31-52, Winter 2008.
  10. Id. at 46-48.
  11. Id. at 48.

Wade Davies WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.