It should be mandatory for defendants to testify in criminal court cases.

If Adnan Syed is so adamant that he is innocent and that the state, the prosecution, etc are all lying, he should have the guts to go up against a cross-examiner like Murphy and be confident that he’ll still look innocent.

Why do we allow defendants to not testify? If it’s out of fear that they’ll look guilty, well then isn’t that the point of trial? To weed out the guilty and the innocent?

The Fifth Amendment to the United States Constitution.

The innocent should remain silent, their guilt cannot be proved.

No. The point of the trial is to test the state’s case against you, to see if the state can prove your guilt beyond reasonable doubt.

It should be repealed.


Like most of the provisions in the Bill of Rights, the protection against self-incrimination was a response to abuses in the British legal system - in this case, convictions based on confessions alone, often extracted through torture.

If you remove the safeguards, the abuses will return.

We could pretend we’re the Soviet Union !!!

Because the burden of proof isn’t on the defendant to prove their innocence

Alright, understood. I concede now that that woukd be the wrong thing to do. Thanks for the clarification and explanation for why defendants are allowed to not testify if they so choose.

Not that I want to repeal the 5th, but I’d like to see a cite that confessions, extracted thru torture, were used as the sole basis of convictions in 18th century England. If wikipedia is correct on this*, that simply was not the case.

*I’m a big fan of wikipedia, but I will concede that in this particular case it might not be 100% reliable.

From memory - no cite on this - they were not used in the common law courts.

But there was also the Court of Star Chamber, used in cases where the interests of the Crown were threatened. The C of SC had a “two witnesses” rule; you couldn’t be convicted on the evidence of one witness alone. On the other hand, you could be compelled to testify, and if the Crown had one good witness to incriminate you, well, your own testimony could make you the needed second witness, couldn’t it? And they had relatively little compunction about extracting that by duress, because (a) you had a legal obligation to testify, and (b) they knew (to their own satisfaction) that you were guilty, so felt fewer qualms than they might otherwise have done.

This would be the seventeenth century, not the eighteenth. I think it was one of the grievances aired in the English Civil War. But it’s certainly an issue that the American revolutionaries would have been aware of in the eighteenth century.

I didn’t mention the 18th century; such practices preceded that time.

Torture wasn’t part of the regular English courts, but it was used by the Star Chamber and the Privy Council.

Torture and the Law of Proof: Europe and England in the Ancien Régime

In eighty one cases over the years 1540-1640 official warrants were issued authorizing the use of torture in England.

In cases of ordinary crime the purpose of torture was primarily evidentiary. One Rice (Case 25, 1567), suspected of burglary, was ordered tortured “whereby he may be the better brought to confess the truth”. Torture of a group of suspected murderers in 1579 (Case 36) was meant “to bring them to confess the fact, that thereupon (sufficient matter appearing) they may be further proceeded withall, according to the law.” A boy, Humfrey (Case 37, 1580), thought to be in “privities” with the culprits who burglarized the house of Sir Drue Drury, was ordered whipped to “wring from him the knowledge of the persons and manner of the robbery, that thereupon order may be taken for their apprehension and punishment according to the laws.”

Well, it’s probably not worth pursuing in this thread, but I find it hard to believe that the Americans were worried about things that had happened in England 100 years prior when they wrote the constitution. That was your original claim about the 5th, and why I mentioned the 18th century. Our constitution was written at the end of that century, not during the 17th or 16th centuries.

Oh, I think they were. They justified their own rebellion against the crown in part by an appeal to the seventeenth-century precedent of the English Civil War. And, as Britons (which most of them considered themselves to be) their notions about personal rights and about the proper relationship between the individual and the state were heavily coloured by British notions, which of course arose out of British history and British experience. The British prided themselves on the fact that, by comparison with continental European countries, they had a very light law enforcement apparatus, they didn’t practice torture, they didn’t have standing armies, etc, etc. All of this helped to shape American attitudes and, eventually, American constitutional norms.

The entire Bill of Rights is based on protections derived from English common law, or from abuses that were still permissible under the common law because those protections did not exist.

Whether those abuses actually *occurred *is another question.

Another reason that defendants cannot be called to testify is that it’s a matter of law that prior bad acts are not admissible as evidence against a defendant. There are a couple of exceptions though. One is to show a pattern. That’s not very common. The other one comes up frequently when the defendant testifies. Prior bad acts may be admitted to impeach the defendant’s testimony. Let’s say the guy is on trial for rape, and he once was arrested for assault-- he punched a guy in a bar fight. The judge has ruled that the assault is not admissible because it is not anything like the rape. However, against the advice of his attorney, the defendant decides to testify. At one point he says “I’d never hurt anyone.” The prosecutor is thrilled, because now he can tell the jury about the bar fight.

Most defendants listen to their attorneys, though, and stay off the stand, especially if they have prior convictions for anything. There have even been instances where people have accidentally implicated themselves in other crimes while testifying. It’s not common, but it happens. If the prosecutor could call any defendant to the stand, he could even attempt to fish for information on other crimes the defendant might have committed. This might lead to all sorts of prosecutorial abuses, where a prosecutor who was unable to get information on a greater crime might bring someone to trial for a lesser crime that would usually be dealt with as a plea bargain, such as probation and community service, just so he could put the defendant on the stand and try to get information on other crimes. The defense attorney would object, and one would hope the judge would sustain it, but perhaps not, if the judge, like the prosecutor, was happy to see the lesser conviction overturned on a technicality in exchange for info on the greater crime.

That’s not actually a reason for the rule, though it may be a valid argument for keeping it.

If you do take the stand and your lawyer throws something to you, be sure to catch it in your left hand. Lengthy television-based research has indicated to me that this is significant.

Yes, of course. I know that. I’m only questioning how far back in time the Founders’ memories were stretched.