Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony.
There is no way for the state to be fully neutral between silence and testimony. Any legal rule that affects testifying and nontestifying defendants differently will have the consequence of penalizing one right or the other, and it would be impossible to remove all such rules from the system. Moreover, because testimony and silence are substitutes—a defendant must exercise one right at trial but cannot exercise both—any rule that penalizes one right necessarily rewards the other.
Courts and commentators have too often analyzed the right to testify and the right to remain silent separately. As a result, they have missed the dynamic of offsetting effects. More generally, they have failed to see that labels like “penalty” and “subsidy” are relative terms that can only be measured by reference to some baseline condition. Partly as a result of those analytical failures, American courts have inexplicably struck down rules that raise the relative cost of silence while upholding rules that raise the relative cost of testimony. Taken together, these rulings can only be explained by positing silence as the desired normative baseline from which all departures are measured.
American law, in other words, currently reflects an implicit policy preference for silence over testimony. That preference has never been explained, and it cannot be justified. More testimony by criminal defendants would give the jury access to important additional information, increase defendants’ own sense of the legitimacy of the process, and reduce disparities between rich and poor defendants. Legal rules that raise the relative cost of testimony undermine these critically important goals.
Our baseline condition ought to be defined by generally applicable rules of law. To the extent that we depart from such rules, we should depart in a way that encourages more testimony. At a minimum, we should not depart in a way that encourages silence. For the last half century, American law has departed in the wrong direction, and it is time to reverse course.
Toward that end, I propose three reforms. First, as a matter of constitutional criminal procedure, the Supreme Court should overrule Griffin v. California, and should thus allow prosecutors to argue adverse inferences from a defendant’s silence. Second, as a matter of evidence law, courts should abandon the Gordon v. United States test for Rule 609, and should admit fewer prior convictions for impeachment. Third, as a matter of sentencing law, courts should not impose perjury enhancements based on a defendant’s trial testimony. These three reforms would help to put American criminal law back on the right course by making more defendants speak.