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  • To Testify Or Not To Testify

    With regard to testifying in criminal cases, research suggests that defendants are “damned if they do, damned if they don’t.”  When defendants choose not to testify, judges often instruct juries not to conclude anything (e.g., guilt) from their choice not to testify.  Studies have shown, however, that limiting instructions actually have a boomerang effect in which they make more salient a defendant’s lack of testimony (Antonio & Arone, 2005; Jones & Harrison, 2009).  Thus the choice not to testify, despite judicial instructions, influences how jurors perceive defendants.

    Jones and Harrison (2009) showed that when defendants chose not to testify, many of the jurors interviewed (27.4%) reported that they believed the failure to testify “was an obvious admission of guilt.”  Other jurors reportedly concluded that the defendant was not sorry or lacked remorse for the crime.  Additionally, Antonio and Arone (2005) stated that jurors expected the defendant to testify in his or her own defense and were confused and curious as to why a defendant would choose to remain silent, often deciding that the defendant was trying to hide something.

    On the other hand, the outcome for a defendant who testified was no better than for one who did not.  Antonio and Arone (2005) found that the majority of jurors reacted just as negatively to defendants who testified.  When defendants testified, jurors most often believed the defendants were lying or showed no remorse for their crimes.

    Another way to look at the data is that mock jurors do not appear to be differentially influenced by whether or not a defendant testifies.  While jurors do view defendants who do not testify with suspicion (e.g. the defendants are perceived as less trustworthy) this does not lead to an increase, as compared to when defendants do testify, in guilty verdicts or ratings of the likelihood that the defendants committed the crime (Jones & Harrison, 2009).

    Although there is no empirical data on white collar crimes, news articles about cases such as Enron suggest that, in some instances, in white collar crime trials, it is best for the defendant not to speak.  “Jurors in the Enron trial made it clear that it would have been better for former executives Kenneth L. Lay and Jeffrey K. Skilling if they’d kept their mouths shut and stayed off the witness stand.”  An e-article by trial strategy consultant Lybrand (2006) further stated that in a post-Enron world if defendants are to testify, they must be better than good enough, they must be impeccable on the stand.

    In summary, jurors are suspicious of defendants whether they testify or not.  Testifying may benefit defendants only if their testimony and demeanor on the stand are above reproach – particularly hard standard to achieve given the nature of cross examination.  It is not surprising, then, that criminal defense attorneys are often reluctant to put their clients on the stand and the research tends to support this choice.


    Antonio, M.E., & Arone, N.E. (2005). Damned if they do, damned if they don’t: jurors’ reactions to defendant testimony or silence during a capital trial. Judicature, 89, 60-66.

    Jones, Shayne & Harrison, M. (2009). To testify or not to testify-that is the question: comparing the advantages and disadvantages of testifying across situations. Applied Psychology in Criminal Justice, 5, 165-181.

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