To Take the Stand…or Not

[Wordpress doesn’t feel like uploading photos today, so please imagine a photo of me in a courtroom wearing one of those curly wigs they wore hundreds of years ago (and still wear in England to this day, I think).]

I recently served my civic duty by participating in the St. Louis City juror selection process. I was not selected, and I can’t talk about the case that I would have been on, but I do have a question for you regarding an element of the legal system the came up during the two days I spent in the courtroom.

In the state of Missouri (and most other states, I’m guessing), the defendant can choose not to take the stand and the jury can’t hold it against him. The defense attorney on the case made a specific point of bringing this up, asking all of us potential jurors if we had a problem with that. Basically, we cannot assume any semblance of guilt simply because the defendant chooses not to testify–that is his right.

Now, I think I understand the idea behind this. You’re supposed to judge the defendant on his/her actions, not his/her ability to speak in public or have a likable personality. I get that. I’d be extremely nervous if I were ever in that position, and I wouldn’t want people to judge me based on my nerves.

What doesn’t make sense to me is that as jurors, we are committed to judging the testimony of any witness that takes the stand based on the content of their words and character. So why can’t we do the same for the defendant? It’s their guilt or innocence that’s on the line. Of all people, shouldn’t they be required to be questioned in front of a jury of their peers? It’s not like they haven’t had time to prepare.

What do you think of this law? If you were ever on a jury, would you truly be 100% unbiased if a defendant chose not to take the stand, or in the back of your head would you be thinking, “I wonder if that means something…”?

18 thoughts on “To Take the Stand…or Not”

  1. Not quite right. The idea behind why you’re not supposed to hold it against a defendant who chooses not to testify isn’t about protecting people who are bad public speakers, but the fact that a defendant is innocent until proven guilty. It’s the State’s burden to prove the defendant guilty, and he doesn’t have to make it easier for the State to meet its burden. Taking the stand gives the State the opportunity to poke holes in the defense, and why would a defendant want to do that? Defendants may also chose not to testify because if they take the stand, it becomes fair game for the State to question their criminal history- past convictions. And a defendant with a background isn’t going to want to be judged on crimes he’s committed in the past. So I have no problem with the notion that the jury isn’t supposed to hold it against the defendant if he chooses not to testify, he’s not supposed to have to do anything to prove himself innocent.

    • Kelly–Thanks for your comment. Perhaps you can help out, because I still don’t quite understand this line in particularly: “Taking the stand gives the State the opportunity to poke holes in the defense, and why would a defendant want to do that?”

      I understand what you’re saying, but isn’t the point of the courts to decide who is actually guilty and who is actually innocent? In the end, isn’t it about protecting the general public, not the defendant? That’s what I don’t understand–why wouldn’t it be to the general public’s benefit (via the court) to allow the State to poke holes in the defense? If there are holes, shouldn’t someone poke at them?

      Also, why shouldn’t someone be judged by their past convictions (convictions, not accusations)? If I broke the law in the past, doesn’t that reflect on the likelihood that I might break the law in the future?

      • I agree with you on the point that it’s in the best interest of the public for the defendant to take the stand whether he or she wants to or not.

        The part I struggle with relates to judging someone based on past convictions (or even considering them during determination of guilt). Maybe I’ve seen too many crime dramas, but I worry about police pinning a crime on someone who’s committed crime in the past, and as a juror, I think it would be in my best interest to know nothing of a person’s criminal history.

        However, personally, I think all that changes after the determination of guilt. I 100% support consideration of past crimes in sentencing.

        • Trev–I don’t think I quite understand your comment. Are you saying that someone who was previously convicted of a crime should have their past crimes held against them in judgment? That’s what I’m saying.

          • I’m saying that I don’t think the jury should be allowed to consider past convictions when determining the guilt or innocence of a defendant, but that the judge should be allowed to consider past convictions when sentencing someone who has already been deemed guilty by the jury.

            I reread what you’ve written, but I can’t tell if you’re saying the same thing either.

    • Does that have anything to do with double jeopardy? A person cannot be charged with the same crime twice, so jury shouldn’t use the previous crimes and judge? Judging a person one crime at a time and each crime its own case?

      • It’s related but not the same thing. I’m saying that if someone shoots someone else and they’re convicted of it, and later they’re accused of shooting a different person, shouldn’t the previous conviction be taken into account by the jury?

  2. I’m intrigued by this, especially headed to jury duty myself next week. I think if someone didn’t take the stand, I could remain impartial because there is SO no way of knowing why they aren’t. There could be a million reasons, 999,990 of which I cannot even imagine or understand. And mostly just because they are following the advice of their lawyer.

    Academically, I agree with you Jamey, it seems only natural that they should get up to speak their case, holes should be poked, histories should be explored. But within the current legal system, I understand why they might not want to and why it shouldn’t be taken as anything other than one strategic decision in a legal case, among gazillions.

    (I feel this way about a lot of issues, if we could start over, I would do it wildly differently, but we must work within the system as it stands, so my positions are not what they would be if I were truly making the decision.)

    • Emma–That’s a good point about the myriad of reasons why the person isn’t taking the stand, and many of them may be attributed to the legal system. On that same note, I wonder why the jury is even allowed to know who the defendant is (or looks like). Ideally people would remain completely impartial based on race, gender, looks, etc, but that’s not always going to happen. So if the defendant doesn’t even have to take the stand, why do they even attend the trial?

      • I think a defendant might want to attend a trial even if he/she isn’t taking the stand to add a human element to the decision-making process. Personally, I think it would be easier to convict a faceless entity than it would a person sitting in front of me looking me in the eye. I’m not claiming that this should impact jurors, but I think it does.

        Similarly, I think, as you pointed out, jurors are sometimes swayed to convict because they don’t like the way a person looks.

  3. I agree with Kelly , in that it is absolutely not a protection from poor public speaking.

    Freedom from self-incrimination is part of the 5th Amendment. It was originally designed to prevent confessions after torture, or for people who refused to swear an oath to tell the truth. But it is also the reason why you have “the right to remain silent” once you are arrested.
    (see Wikipedia: “Fifth amendment to the US Constitution”‘s section on “Self-incrimination”, esp. “Refusal to testify in a criminal case).”

    Our justice system provides MANY protections for the accused at cost to the State (the office representing “The People”). My understanding is that the framework of the US legal system is extremely focused on the protection of individual’s rights, making it much harder to successfully prosecute someone in the US than it is in many other countries (where you are not afforded the same rights).

    • Red–Very interesting. I certainly understand the importance of protecting the accused–in fact, that was a separate question the lawyers asked us: Can we remain fair and impartial, knowing that the defendant has only been accused, not proven guilty of anything? Unanimously we agreed.

      Given that was a separate question posed to us, it seems like a slightly different matter. After all, if the person didn’t commit the crime, what do they have to fear from taking the stand?

      • If you go to law school you can get a whole education in not taking the stand! And it’ll only cost you about $100K.

        One of the reasons, addressed above is Fifth Amendment protection against ‘self-incrimination’ “nor shall be compelled in any criminal case to be a witness against himself,” which is a bit of a misnomer if you consider that the defendant is innocent (there’s nothing to incriminate). There’s also Evidence rules (google: hearsay). Basically it’s to ensure due process under the law, as the Supreme Court has stated (thanks Wikipedia): “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” People shouldn’t be compelled to take the stand–you might have a circumstance where the defendant is actually not ABLE to take the stand (can’t speak, mentally incompetent, mentally insane, etc.). Usually it doesn’t go over well for the defendant to take the stand anyway.

        What if the person takes the stand and somehow implicates himself in another crime? Can you really judge whether a person is telling the truth or not based on what the accused says? “I didn’t do it,” what if he didn’t but he sounded nervous? This is usually too prejudicial to be beneficial to testing the veracity of a statement. Dis-interested witnesses make much better statements that seem to have veracity because they are unlikely to benefit from simply telling the truth, no bias, etc.

        And yes, it’s up to the judge to decide the parameters of the punishment after the jury weighs in. The judge will take into account past convictions if relevant for the sentencing guidelines.

        • I’m glad that we had a real lawyer weigh in! What types of “ambiguous circumstances” might come into effect?

          I do see your point about the jury making decisions based on the witness’s nerves (a previous commenter said that sentiment wasn’t valid–we have a real lawyer to back me up now, Red!). I see your point about them implicating themselves on another crime too.

          I’m curious–I made a comment above about the defendant potentially not even attending the trial to prevent any other prejudices against him/her. Since it seems that they must attend the trial, how is that all that different from them taking the stand? The jury can watch the person during the trial and judge the person not just on the way they look, but on the way they act (i.e., nervousness) as well.

  4. Ha, I guess getting a J.D. and passing the bar does make me a ‘real lawyer.’ Thanks, and I got the debt to prove it too!

    Anyway, while it’s true that a juror could ‘judge’ the defendant based on his or her demeanor, the jurors are not supposed to take that into account when evaluating the charges against the defendant. In other words, jurors usually get jury instructions from the judge not to take into account any extraneous factors other than the evidence before them. So even though it’s human to judge, you can’t for instance base your conclusions on how the defendant acted while sitting in the courtroom–that’s not the evidence before you. Also, the high standard in criminal proceedings (beyond a reasonable doubt) vs. most civil cases (preponderance of the evidence) should be taken into account when looking at all the evidence. Very often defendants are charged with a lesser charge or found not guilty because the prosecution has not met that high burden. The simple reason that a defendant goes to trial is not just for his benefit but also for those affected to sometimes issue an impact statement–though in terms of timing I’m not sure if this happens before or after sentencing (it might vary by state?).


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