A gracious reader brought my attention to an article entitled The Silence Penalty, 103 Iowa L. Rev. ____ (forthcoming 2017), which is soon to be published by the University of Iowa College of Law, and which is authored by Professor Jeffrey Bellin of William & Mary Law School. Professor Bellin has examined data from actual criminal trials, as well as the results of a recent 400-person mock juror simulation, to conclude that an accused person who declines to take the stand in a jury trial suffers a conviction rate penalty that is about equal to having evidence of a prior conviction presented against them. In contrast, “for defendants without prior convictions, testifying coincided with an almost doubling of the chances of acquittal.” The Silence Penalty at 26. Professor Bellin warns:
The surprising power of the silence penalty should give pause to the many defendants without a prior record who demand a trial but then decline to take the witness stand[.] . . . Declining to testify,  puts them in the same position as a defendant with prior convictions. This is a major blow to acquittal prospects and one that (tactically speaking) should be avoided if at all possible.
Id. at 30. For defendants with prior convictions, the research found that the rate of conviction was about the same whether the accused testified or not.
Though it supports his conclusions, Professor Bellin’s article does not heavily rely on his 400-person mock juror simulation. Instead, the article spends much of its time digesting and analyzing the real trial data collected by the National Center for State Courts in 2000 and 2001. Id. at 20-37. This is fortunate, because a few features of that 400-person mock juror study, which Professor Bellin fully disclosed in his article, arguably weaken that study’s value.
First, the mock jury study relied upon Amazon’s Mechanical Turk employment website to obtain study participants. The Silence Penalty at 17. As Professor Bellin acknowledged, “Mechanical Turk respondents . . . can skew younger, more female and more educated than the population at large.” Id. Plus, the study’s participants were paid – and paid at a rate that was “high by Mechanical Turk standards, and resulted in an almost immediate acceptance of the survey by the maximum number of respondents[.]” Id. at 17, fn. 96.
Those factors alone could cause someone to question the reliability of the data. Beyond that, though, the study is also weakened by the fact that the mock jurors participated separately and independently from each other – there was no opportunity for them to deliberate prior to casting their ballots for a verdict. Further, while each mock juror was instructed that the defendant was not required to testify, they were not specifically instructed to disregard the defendant’s decision not to do so. Id. at 20, fn. 102.
Still, despite these concerns, the article – especially its analysis of real case data – offers a compelling reason for defense counsel to prepare and advise their military clients to testify in their own defense. A 1993 article from Stanford Law School’s Professor Emerita Barbara A. Babcock, entitled Introduction: Taking the Stand, 35 Wm. & Mary L. Rev. 1, seems to agree:
Let me summarize the discussion so far of taking the stand from the defense view. The decision is fraught—but always in the background is the fact that [the defendant’s] failure to testify will increase the already great probability that he will go to prison.
Id. at 15. Professor Babcock continues:
To make this critical and complex decision, the defendant needs help. And if he has a competent lawyer, his possible testimony has been a subject of discussion from very early in the representation. Those who are well-defended rehearse their testimony; the better defended they are the more they rehearse.
If, even after rehearsal, the defendant’s “testimony is weak in substance and halting in style[,]” id., Professor Babcock recommends the defendant still take the stand and face cross-examination. She asserts that, then, the burden falls on defense counsel to rehabilitate her client during argument. Specifically, she recommends urging the jury to consider:
You saw my client, with her sixth grade education, who has never before spoken to an audience in public, on trial in a federal court; and you saw the government prosecutor with her decades of learning, and years of experience, closely cross-examine her. Yet, in this unequal contest, you never once heard my client deviate from her basic testimony in this case: she is not guilty.
Id. In Professor Babcock’s estimation, however weak or halting the defendant’s testimony was, in the hands of a skilled advocate, “fleshed out, this argument alone can make it worth the defendant’s taking the stand[.]” Id.
Scholarship Saturday columns over the past 3 months:
• April 8 – The silence of the accused at trial
• April 1 – Forensic science standards beginning to take form
• March 25 – Sex offender registration statutes are not faring well when subjected to rational basis scrutiny
• March 11 – Military Rule of Evidence 513 – “What men value in this world is not rights but privileges.” – H.L. Mencken (1956)
• March 4 – The call for military justice litigation career tracks
• February 25 – Prosecutorial misconduct vs. unlawful command influence—plus another call from academia to strip commanders of prosecutorial discretion
• February 18 – Punishing the cyber thief
• February 11 – CAAF as sentinel species
• February 4 – The ongoing discussion regarding the placement of military prosecutorial discretion