The right to remain silent is not necessarily a blessing to a defendant. Because having a choice is not necessarily a good thing. Unless the decision to testify is uncorrelated with guilt, that decision by itself will convey information to the jury. (I know juries are instructed not to infer anything. But that is impossible.) So for example, if those who take the fifth are more likely to be guility (as I would guess. Are there data on this?), then an innocent person’s “right” to remain silent is actually a right to partially incriminate himself
A prohibition against defendants testifying on their own behalf is worth considering. If the goal is to protect defendants from incriminating themselves, then the above benefit offsets the obvious cost.
And if that is too extreme there are middle grounds to consider. For example, since the defense puts on its case last, the defendant does not make his decision until after the prosecution has introduced evidence. A defendant might want to commit in advance of that evidence being revealed that he will not testify so that nothing can be revealed by his decision being contingent on the evidence. As far as I know this commitment is not possible under current law.
In general the earlier you commit not to testify the less can be inferred from this. So we should allow citizens to register their commitments before they are charged with any crime. When you register to vote you also check a box that says whether you or not you will testify in the event you are ever charged with a crime.
Cheap Talk 
8 comments
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August 2, 2011 at 4:57 am
gallinacrema
Then, if there is a non-zero probability that anyone can be charged with a crime and there is a non-zero probability that anyone can incriminate herself when testifying, in equilibrium everyone chooses to commit to not testify, so we could save complications by directly going to the extreme case of prohibition. Right?
August 2, 2011 at 6:28 am
jonah gelbach
Interesting post. That said, and leaving aside issues of actual criminal law doctrine, I don’t think it follows that just because (a) *some* inference of guilt would flow from a defendant’s declining to testify, (b) it makes sense for people to commit not to testify, given that they must do that once and for all. Whether that would be optimal to do, given no other alternative than the status quo, surely depends (at least) on the joint distribution of the events of (i) being charged with a crime and (ii) the evidence’s being such that the probability of conviction would be reduced via defendant testimony.
August 2, 2011 at 7:06 am
Alan Gunn
Who would have a goal of preventing people from incriminating themselves? Unless crime is a good thing, in which case we’re in big trouble, this seems wrong. Saying people shouldn’t be forced to incriminate themselves, say by being tortured until they confess, is one thing; saying we ought to go out of our way to keep them from doing it is very different.
August 2, 2011 at 10:17 am
emir
Similarly, the obligation of the prosecutor to reveal any exculpatory information he learns over the course of his investigation (Brady vs. Maryland 1963), actually harms the defendant in equilibrium. This obligation provides him with a commitment power that makes him more effective in swaying the jury’s presumption of innocence.
August 2, 2011 at 12:56 pm
KevinH
I’m not sure if the benefits outweigh the costs in preventing testifying on your own behalf.
First, there are a decent number of cases where the only real evidence is testimony by the defendant and by an alleged victim, and I have to believe there would be more of them if defendants were precluded from testifying.
Also, in general, you seem to be misinterpreting the point of the 5th amendment in my view. The goal is to have as few innocent people charged with crimes, not necessarily make it as easy to be acquitted as possible. Those two goals will have different optimal rules, and it seems that sending some guilt information by a choice not to testify does not strongly impact that goal.
Lastly, there’s always the factor of human behavior which probably overwhelms this effect. Because it is a choice, each defendant can choose what they believe to be the optimal decision given all relevant factors, including what they believe the perceptions of the jury will be. The only exception to this would seem to be the non-choice of a lawyer not being able to call a witness that they know will lie, which in some cases would preclude a defendant from testifying in his own defense.
August 2, 2011 at 5:50 pm
Evan
Does allowing commitment when you register to vote actually change anything? In this case, juries could interpret someone who commits to always testify as sending a signal that they were not likely to commit any crimes in the future.
Or, conversely, juries might reason that the reason that the defendant committed to not testifying is because he must have already been planning to kill Joe Bloggs, and therefore he must be guilty.
August 4, 2011 at 10:35 am
Leonard
Seconding Gunn. We want people to incriminate themselves — assuming they are actually guilty.
The ideal would be to get every defendant to testify truthfully. We cannot do that, so we have other policy. But that is what would be best. (It is worth considering, in this context, that in the near future we will probably be able to determine when a defendant is lying by scanning his brain in realtime during testimony.)
If defendants could be required to testify, there is the danger that police would torture them to get confessions. This is a significant enough problem (see: Soviet Russia) that it is worthwhile having a 5th Amendment to prevent it.
The 5th is itself the compromise you seek. It protects everyone from torture. And taking it does, correctly, incriminate a man, but only to a degree.
August 5, 2011 at 2:19 am
single wall carbon nanotubes
It is right that some time we have to face some problems to talk to some one or openly to world the right to remain silent is became a bit obligation at that moment. But its a drawback as criminal free to not say anything front of public.