Dateline: November, 2021, Issue 1

How well do jurors uphold a defendant's right not to testify?

Jurors in criminal trials are instructed they may not draw any inference of guilt when criminal defendants exercise their right not to testify. Jurors often also are instructed that defendants' exercise of their right to remain silent cannot influence verdicts in any way.

Frank and Broschard (2006) surveyed nearly 600 actual criminal case jurors after they completed their jury deliberations in Florida misdemeanor and felony cases. In approximately 40% of trials, jurors reported that criminal defendants exercised their Fifth Amendment privilege.

When defendants chose not to testify:

Would non-testifying defendants be better off testifying? Fully 98.5% of jurors in trials where defendants exercised their Fifth Amendment right disagreed that "If the defendant had testified in the trial, I believe the jury would have found him∕her innocent of all charges". Further, three of five jurors (60%) in trials where defendants testified did not find the defendant credible.

Would testifying defendants be better off not testifying? Only 1% of jurors in trials where defendants testified agreed strongly that "If the defendant had not testified in the trial, I believe the jury would have found him∕her innocent of all charges"; and 88% disagreed.

Disturbingly, jurors reported overwhelmingly that they understood (99%) and strictly followed (98%) their instructions. Of those jurors reporting that their juries discussed that the defendant did not testify, fully half said that the juries carefully went over the instructions and strictly followed them. For those jurors reporting it mattered to their juries that the defendant did not testify and their juries carefully went over the instructions during deliberations, all state that the jury strictly followed its instructions in reaching its verdicts.

The researchers conclude that jurors nullify the Fifth Amendment, albeit to different degrees: mild (the jury discusses the fact), moderate (the fact matters to the jury), strong (jurors individually feel defendants have an obligation to testify), and strongest (not testifying makes a finding of guilt more likely). Jurors neither understand their instructions generally nor, as the instructions concern the Fifth Amendment privilege, specifically.

Source Frank, M.J. & Broschard, D. (2006). The silent criminal defendant and the presumption of innocence: In the hands of real jurors, is either of them safe? Lewis & Clark Law Review, 10(2), pp. 237-285.