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

Certainly as far as 1641, when the Star Chambers were abolished. Remember, many of the founders were lawyers. Any student of English history can “remember” back to 1215 and Magna Carta.

They wouldn’t necessarily have had to remember that much history, though. Much of the Constitution was crafted by necessity and the lessons of the Revolution. For example, having no representation in Parliament, and no influence over the English judiciary, the colonials’ only real political-judicial power lay in the jury (since by necessity it would be Americans who sat on them). They wrote that influence into the Seventh Amendment, and as a result US juries have always had more power than English ones.

Great commentary!

There are other exceptions, for whatever it’s worth. For instance, apart from showing a pattern, prior bad acts are admissible to show absence of mistake. Felony convictions that show dishonesty may be admissible to impeach credibility, even without any similarity between the act and the instant crime.

And it’s worth pointing out that the admission of that evidence is for the limited purpose of impeaching credibility, not as proof of any underlying fact.

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

**It should not be. If the State says I’m guilty of something, they can damn well prove it.

Is “absence of mistake” a legal term? Or what does it mean?

Does it mean something like “the defendant claims he shot his brother-in-law by accident, but he was convicted of robbing a liquor store with a pistol so he is probably lying”? Or something else?


Along those lines, yes. Though not that particular circumstance. It would be more like “the defendant claims he believed he was brandishing a toy gun, but X prior act establishes that he was aware that it was a real firearm.”

We don’t expect defendants to testify because it is up to the prosecution to make a case.
No case, no need to testify.

^^ This.
I should not have to utter a sound for you to prove something.

I have nothing to prove.

More close to, “You testified that the shooting was an accident because you thought all guns had a safety, so pointing it and pulling the trigger was perfectly safe. But three years ago you were accused of shooting your cousin, and you claimed then the gun went off accidentally because you thought it had a safety.”

Gotcha, thanks.


Why is it automatically the assumption that the 5th prevents injustice rather than perpetuate it?

I think that just as the prosecution must make a case against a defendant, so too should the defendant make a case for himself. I consider these requirements to be neutral. Neither one assumes guilt or innocence, they only determine what steps one is required to do in order to achieve an outcome favorable to themselves. That a defendant gets to choose whether or not he testifies doesn’t seem like justice to me, as a better coached, more well-liked defendant would have the advantage just as he would if he was forced to testify. Slimy guys looking like the type capable of committing crimes are equally disadvantaged by their look and background. There is no benefit to either the defense or the prosecution that would not be there already whether the defendant testifies or not.

If the fear is that prosecutors are unfairly advantaged into being able to take down a defendant on cross examination, why doesn’t that apply to witnesses and experts too? Why not just each side only cross examine their own witnesses and experts, and let the jury decide who was more convincing? The same principle that allows both sides to poke holes in the other side’s witnesses should apply to the defendant. He says he’s innocent, let him say so himself, and let the prosecution cross examine him.

The only reason I can think of to prevent that is we want to purposefully stack the deck against the prosecution. That might be a noble goal, but I think most of us have long internalized the motto of “innocent until proven guilty”. Even if the defendant looks bad, there are still other experts and witnesses to rely on. Its not a matter of “we must make the prosecution prove their case rather than the defendant prove their innocence”. Forcing him to testify does neither, it just gives a viewpoint of the person in question. Its neither good nor bad for the defendant.

I don’t see forcing someone to testify as an active statement on whether or not we’re still assuming innocence or guilt. I see it as relevant testimony integral to the case, just as courts can subpoena people because their statements are relevant. The defendant’s words are always relevant, and if we assume they go into it truthfully, then it is never biased. Doesn’t the jury deserve to hear the most relevant person testify before making their decision?

It’s only neutral if the sides have equal resources. It’s only neutral if the result of a loss is the prosecutor goes to jail. It’s only neutral if being accused of a crime has no impact on a person’s life.

There’s no reason to change the current setup.

So what should happen if the defendant refused to testify against himself? Jail under contempt of court until they agree to testify?

And if someone makes a loud noise, for gawd’s sake, don’t turn your head.

If the prosecutor is allowed to ask “Did you do it?” and the defendant did, in fact, do it, then he is being forced to testify against himself. Or he is being forced to lie, which he will probably do. The prosecutor knows that if he asks this question, the defendant is going to say “No,” and since the prosecutor believes him to be guilty, the prosecutor is suborning perjury. That’s a crime. It gets very complicated. The defendant will have to testify without being under oath, or after being given immunity, or something-- IANAL. Anyway, it makes his testimony pretty much useless. I could actually analyze this more, but I have to go.

It’s better that way it is.

Resource imbalance will always be there but I don’t think allowing the 5th is a good way or the only way to try and equalize things. I can imagine plenty of things we can give the defendant to stack the deck in their favor such as limiting the amount of witnesses and experts called by the prosecution, allowing them to be acquitted with only 11 out of 12 jurors in favor of them, etc. Not all of these ideas are good even if it would balance things. I just think that we accept the 5th unquestioned but don’t really get into the how’s and why’s of its fairness. Why this thing? Why not something else? Why not more/less?

Probably the same thing that happens to anyone who defies a court order. Its not a radical idea. Right now, if there is, for example, a gag order and the defendant violates that, he’ll be punished. If he blurts out things in court or bribes the jury, he’ll be punished. Refusing to testify shouldn’t be treated any differently. Its only because we’ve accepted as normal that a defendant doesn’t have to testify that we balk at punishing him for it.

I don’t think your logic works. If the defendant confesses because he doesn’t want to perjure himself, then there’s no case, he lost, he’s guilty, end of story. I wouldn’t be upset at the prosecution asking that. In fact, in any case, don’t the cops ask that? Why should any case go on without the main defendant being asked if they are guilty? That’s standard practice, or if it isn’t then it should be.

Next, the perjury situation will only happen if the person is guilty, and chooses to lie about it. Well, you’re not supposed to lie under oath anyway, so I have little sympathy if they lied when they actually committed the crime. Though I wouldn’t tack on extra punishment for them if they are convicted, I feel like lying to save your neck but losing the case just should default to you losing the case and taking whatever punishment you get.

Then the third scenario, in which you’re not guilty and say so. Well, nothing’s wrong with that at all.

Basically, I don’t see a problem forcing a guy to either confront of deny his guilt. To get to the bottom of a case, there should be a full accounting of the crime from every side so that proper punishment can be doled out. No justice is served if one side is allowed to hide their side

It’s not about arbitrary deck-stacking, it’s about the burden of proof. The state has to prove guilt beyond a reasonable doubt. If you allow the accused to be forced to testify, you are shifting that burden.

We have that, it’s called a plea.

Can you explain why you think the burden of proof shifts? If a defendant chooses to testify, the trial suddenly doesn’t shift to guilty until proven innocence mode, a deadlocked jury doesn’t mean the defendant goes to jail. To me, its simply the perception of shifting the burden without any of the actual shifting. The instructions to the jury are not any different than before where the prosecution has to prove reasonable doubt, you’re just forcing the defendant to weigh in too.

No it should not, and it will never be, despite the submission of asshole posts, real asshole posts, to the contrary, such as the one above.

That’ll earn you a warning. Keep it civil, please.

Because requiring the defendant to successfully withstand cross-examination is, in effect, requiring the defendant to prove their innocence.

A deadlocked jury never means conviction. A defendant having the option to testify is totally different from being compelled; just as the fact that some people allow the police to search their property doesn’t obviate the need for search warrants.

One might say that, well, torture is illegal in the USA today in criminal cases, so there is no longer a need for the Fifth. The problem is the difference between theory and practice. The “system” of police, prosecutors, and jailers have wide discretion to run things the way that they think is best…and if a tight-lipped defendant suddenly finds himself sharing a cell with the most notorious prison rapists, the warden can just shrug his shoulders and say “oops” or “well, it’s policy that inmates have to share a cell, and they were matched because…uhh…they all indicated on a survey that they liked Irish music.”

This is also the reason that the Exclusionary Rule is implied from the Fourth Amendment. Sometimes we like to think that because illegal searches and seizures are illegal, police will refrain from doing them. That’s naive thinking - we need something stronger to ensure that the right thing is done.