Trial Blog Regarding a Defendant’s Right Not to Testify
This is a blog by Attorney Loren Dickstein, who is currently in a trial on an Armed Robbery case in the Oakland County Circuit Court. Jury selection is called “voir dire.” The process only works if prospective jurors are honest.
An Example of Why Honesty is Crucial in the Jury Selection Process
I’m currently in a trial on an armed robbery case in the 6th Judicial Circuit Court in Oakland County, Michigan. As we picked the jury last Thursday, a process called voir dire, I delved into an issue that never fails to be an issue in a jury trial. Many people want to hear from the defendant; they want to listen to them testify and profess their innocence. In fact, this desire on behalf of some jurors is so extreme that they will candidly admit that even if the judge gives them an instruction that the law prohibits them from considering whether the defendant testifies as evidence, they just cannot follow the law in that regard. I always preface my questions in that area with my truthful experience that I’ve never had a trial when at least one person doesn’t candidly admit that this is their firmly held opinion. Failure to adequately explain that it’s the defendant’s right not to testify and their silence cannot be used against them can be fatal to a client’s case.
In this particular case, I asked whether any prospective juror might be influenced by whether the defendant testifies, and there was a delay of several seconds with no response. I waited…and waited…and waited. Sure enough, as I knew it would be the case, a woman in her mid-fifties slowly raised her hand. Her honesty was essential to getting a fair and impartial jury. It is not easy to proclaim in an open courtroom that you cannot follow the law, but it is the truth for more people than those who have the bravery to admit it.
The Fifth Amendment to the Constitution Provides That It Is The Defendant’s Right Not to Testify
The Fifth Amendment provides, “No person shall be held to answer for a capital, or otherwise, infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
As it relates to a bench or jury trial, the 5th Amendment stands for the proposition that if the defendant does not testify at trial, that fact cannot be considered by the trier of fact as evidence of guilt. The right not to testify is not just a law passed by a legislature or even a citizen’s initiative; it is in the Constitution. The right to remain silent principle is at the heart of our country’s notion of what is fair and right. American citizens do not have to prove their innocence or do anything in their defense. When the government accuses a person of a criminal offense, it must prove their guilt “beyond a reasonable doubt,” or they are not guilty. Requiring a defendant to testify or even considering whether the defendant testified is an unconstitutional shifting of the burden squarely placed on the prosecutor’s shoulders. It is the defendant’s right not to testify, and it is the judge’s job to ensure the jury understands that their silence can not have any negative implication.
Don’t feel sorry for the government just yet; the burden is not unduly burdensome.
Despite the fundamental due process protections the founding fathers (and undoubtedly the founding mothers through the input of their husbands) gave to American citizens, the government still has the advantage (often the unfair advantage). The truth is that most jurors assume the defendant is guilty despite the “presumption of innocence.” Notwithstanding the burden of proof being “beyond a reasonable doubt,” many jurors use the custom burden of “do I think he did it” or “does the victim deserve a conviction despite whether or not this particular defendant did it or not.” The less “desirable” or “likable” the defendant is, the higher or lower the burden tends to be in a case. These are not the burdens required under Michigan or American constitutional law. Too many people (thousands) are wrongfully convicted by juries in America and later proven innocent. Wrongful convictions are especially likely in eyewitness cases because eyewitness testimony is historically unreliable.
Why is the defendant’s right not to testify so important?
The right not to testify lies at the heart of the Fifth Amendment, which protects individuals from being forced to incriminate themselves. In criminal cases, the burden of proof rests entirely on the prosecution. A defendant never has to prove innocence, and the court cannot compel the accused to take the stand and potentially face hostile questioning.
Jurors often misunderstand this right. They may assume a defendant who doesn’t testify must have something to hide. But in reality, a defendant may remain silent for many valid reasons: to avoid confusion under cross-examination, to protect against prior bad acts being used unfairly, or simply because their lawyer has advised that the prosecution hasn’t met its burden.
A judge must instruct jurors not to draw any negative conclusions from a defendant’s silence. However, this instruction alone doesn’t always erase implicit bias. That’s why experienced criminal defense lawyers often focus on this issue during voir dire and throughout trial—to ensure jurors understand that silence is not guilt.
Respecting this right isn’t just a matter of fairness. It’s a cornerstone of a system that presumes the defendant innocent unless and until the government proves guilt beyond a reasonable doubt.
What does a defendant’s right not to testify mean to you?
It means that honesty in the jury selection process is necessary for the system to work at its optimum level. Thank God for the juror who admitted she could not follow the law in my case and couldn’t accept without bias that it is the defendant’s right not to testify. I don’t know how this case will work out, but thanks to that particular juror who admitted her bias, my client is assured of getting a fairer trial than he would have otherwise had.
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