The right not to testify carries practical risks that often outweigh its protections.
Evidence
The most difficult question defense attorneys face is whether the defendant should testify. On the one hand, jurors are naturally curious about the defendant’s version of events, and a convincing assertion of innocence by the defendant may lead to acquittal. Moreover, despite warnings by the judge that no inferences should be drawn from a defendant’s failure to testify, jurors may well expect a defendant to take the stand if he or she is innocent, so the failure to testify could hurt the defendant’s chances. On the other hand, a defendant who testifies is subject to cross-examination by the prosecutor, who may expose difficulties with the defendant’s story. In addition, the prosecutor can impeach the defendant’s credibility by introducing, within certain limitations, evidence of his past criminal record. Thus, the defense attorney must judge, and advise the client on, whether jurors will view the defendant as a truthful witness with a believable story. — G. Alan Tarr, Judicial Process and Judicial…, 1394
Categorization
- XREF: Ties the Fifth Amendment privilege against self-incrimination to its real-world costs, a core tension between constitutional rights and jury behavior. — connects to: Without contingent fees, ordinary citizens with real injuries would often not sue. — G. Alan Tarr, Judicial Process and Judicial…, 1151; The Supreme Court has narrowed the constitutional right to confront witnesses — G. Alan Tarr, Judicial Process and Judicial…, 1308; Granting new legal rights can weaken rather than strengthen one’s position. — Thomas C. Schelling, The Strategy of Conflict, 789 (+2 more)
- SEED: Piece angle: how jury psychology quietly punishes defendants who exercise a constitutional right.
Broader Connections
- Granting new legal rights can weaken rather than strengthen one’s position.
#expands(0.90) — Thomas C. Schelling, The Strategy of Conflict, 789 - Relaxing evidence rules shifts their burden from protection to exposure depending on one’s position
#expands(0.90) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4840 - Legal uncertainty creates disputes, litigation, and judicial discretion
#expands(0.80) — G. Alan Tarr, Judicial Process and Judicial…, 214