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- Title
The Silence Penalty.
- Authors
Beilin, Jeffrey
- Abstract
In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant's prior crimes. But silence comes at a price. Jurors penalize defendants who fa il to testify by inferring guilt from silence. This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments--including the results of a new qooferson mock juror simulation conducted for this Article--and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant's trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a "parallel penalty" effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas. The empirical evidence surveyed, including the new juror simulation, ivill be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.
- Subjects
UNITED States; CRIMINAL trials; RIGHT to testify; CRIMINAL justice system; CRIMINAL defendants; FINES (Penalties)
- Publication
Iowa Law Review, 2018, Vol 103, Issue 2, p395
- ISSN
0021-0552
- Publication type
Article