201703.31
Off
0

The Decision to Testify or Not

When a Soldier chooses not to testify in a court-martial, it should not come at a price.  In fact, the military judge will instruct the court-martial panel members that they may not draw any adverse inference from a Soldier’s decision not to testify.  However, it is only human to expect that an innocent Soldier would want to deny guilt, and panel members are only human.

In “The Silence Penalty,” Professor Jeffrey Bellin explores the costs associated with the decision not to testify:

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.


This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.


The empirical evidence surveyed, including the new juror simulation, will be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.

Civilian Defense Attorney

If you are facing a court-martial, the decision to testify or not is a critical one.  The impact of this decision may make the difference between guilt or innocence.  If you do testify, it is important that you have been properly prepared to present your best court-martial defense.  An experienced court-martial attorney will know how to prepare you to testify.  Mr. Coombs has over 20 years of court-martial experience.  Contact our law office today for a free initial consultation.