Keep piling heavy rocks on his chest until he testifies or dies!
And if your attorney calls the allegedly deceased murder victim to testify in order to establish reasonable doubt, for God’s sake be sure to turn and gape in surprise at the door like everyone else is doing.
The abuses have returned. About 85% – 90% of guilty verdict are obtained by a guilty plea extracted under the threat of a much longer sentence.
The extra penalty of going to jury is called “Jury Tax”.
I don’t know about “returned”…was there really plea bargain abuse in pre-Revolutionary Great Britain?
No. It’s not allowed now, either. The defendant can ask the judge for a guideline sentence that may be imposed in the event of a guilty plea, and the Crown and defendant can negotiate about pleading guilty to one or more existing charges in exchange for dismissal of others.
The classic US plea agreement of a guilty plea on a charge not previously raised is totally impermissible, AIUI.
NM – misread.
I’m having trouble accepting your premise. Both of us know that jury instructions are that the prosecution must prove their case beyond a reasonable doubt, anything less and juries are instructed to vote for acquittal. I can imagine, as I’m sure you can, that the instructions in a court without the 5th stay the exact same thing, with the added caveat that even if the jury disbelieves the defendant, or they think he’s lying, that they still acquit if the prosecution cannot prove their case beyond a reasonable doubt. No shifting of the burden is demanded or expected, the defendant’s voice is simply another variable added to the equation. Why don’t you think juries cannot follow the instructions given those circumstances? Is it because you think its too hard for juries to dismiss an unsympathetic defendant? Or do you think such instructions are useless in the first place and jurors will vote however they feel, and don’t want to give them ammo in the case of a bad defendant? Or some other reason? Because if I were a jury, and these instructions (with no 5th) is normalized, I can guarantee you that I will be able to follow the instructions to weigh the effectiveness of the prosecution’s case even if I don’t believe the defendant.
That may be true, but evidence collected improperly can be suppressed. It doesn’t mean it disappears, it just means it can’t be considered for the case. So too are jurors free to dismiss the words of the defendant whether compelled or not. Right now, if a defendant chooses to testify, the jury instructions don’t change, they aren’t told to base their case on how they perceive the defendant to be, they are still compelled to weigh the strength of the prosecution’s case. I just don’t see a good reason why, if the defendant were forced to testify, that such instructions would have to change.
Take for example OJ Simpson. He didn’t testify, but suppose he did screwed up big time and said a lot of stupid things on the stand and was ripped apart by Marcia Clark. The jury would still get to say that the prosecution didn’t prove their case beyond a reasonable doubt. Nothing changes. His voice would just be one in a sea of testimony.
I’ll describe it another way. Under the status quo, the state must prove guilt beyond a reasonable doubt. The defense must do…nothing. Under the OP’s proposal, the state must prove guilt beyond a reasonable doubt, and the defense must make the defendant available to testify to their innocence and be cross-examined. It applies a burden to the defense, where previously there was none.
Beyond my argument above, I feel that there’s already a mechanism in place for the defendant to assert their innocence: by pleading not guilty. Once that has been done, it’s on the state to prove otherwise, not for the defendant to talk the jury into believing him or her. The legal principle of is centuries old for a reason, it’s been long recognized that convictions must be based on more than the words of the defendant in order to be just. Under the OP’s proposal, the words of the defendant alone could lead to conviction - a plain step backwards.
On more practical terms, yes, I believe that the proposal would result in more false convictions. The state already has a resource and psychological advantage in most cases, allowing them the additional tool of putting defendants with poor language skills (or that speak in AAVE, or that have cognitive issues, or “look guilty”) on the stand would rig things even more against the most vulnerable. Imagine the Brandon Masseys and Jessie Misskelleys of the world ever getting an acquittal.
I don’t think the defendant can ever be “just one in a sea of testimony”. As the person accused of the crime, they are the centerpiece of the whole trial. It’s naïve to think the jury would weigh their testimony and that of say, the assistant coroner, equally.
As for Simpson: it’d be unjust for him to convicted because a veteran prosecutor verbally outwitted a retired football player, and not because of the evidence in the case. If you prevent conviction based on forced testimony by prohibiting forced testimony, the only way for the state to get a conviction is actually proving the case.
Anyone who thinks that torture has disappeared should listen to this from a highly respected expert: Sleep Deprivation Can Result in False Confessions | CBC Radio.
If you don’t think that imbalance of resources makes a difference, explain why no banker has gone to prison (but may borrowers have) over the “liar mortgages”. Also the OJ trial.
If you want to know why the 5th Amendment right against self-incrimination should never be repealed, Google Barry Scheck’s innocence project and read about forced confessions. There have been many convictions in the U.S. based on confessions made under duress. It doesn’t necessarily have to be ‘third degree’ coercion either. There have been numerous techniques employed - even endorsed by investigative experts and shared with law enforcement agencies in their training - over the years. Many involve nothing more than physical isolation, sleep deprivation, and classic ‘good cop’ and ‘bad cop’ routines.
The UK did have a standing army in the 18th Century – the Americans knew that very well, having fought the Redcoats.
By European standards, it was small. The U.S. for almost two centuries followed exactly the British style of keeping a small standing army, and gearing it up when necessary. For example, the British Army had 40,000 members in 1793, at the end of the Napoleonic wars had 250,000, and was down to 80,000 only two years later.
Now, on the other hand, in fairness, what the British had was a standing Navy, the largest and most powerful in the world for about 300 years.
Technically, no. They had an army, but it wasn’t a standing army. Under the (UK) Bill of Rights, the crown could (and still can) only maintain an army with the consent of Parliament, and for so long as Parliament permits. The practice at the time was the Parliament would authorise the army only for a year at a time. Each year it would pass a new Army Act to authorise the army for a further year (and, usually, to specify the size of the army). If the Army Act didn’t pass, the army would have to be disbanded at the end of the year. Thus if Parliament was unhappy about the size of the army, or the way it was being used, they were in a good position to put an end to whatever abuses they perceived. (The UK kept up with this system until the mind-1970s, at which they switched to authorising the army for five years at a time, which I think is still the practice.)
This was in marked distinctioni to most other European countries at the time, where the monarch could and did maintain whatever armed forces he thought fit, and deploy them as he wished. The British were quite proud of this; they saw it as a central feature of ensuring the primacy of Parliament over the Crown. It was one of the new constitutional rules introduced following the Glorious Revolution of 1688.
So, Article I section 8 of the US Constitution (which vests the power to raise and maintain armies in Congress rather than in the President, and provides that money to fund the army is not to be appropriated for a term of longer than two years) didn’t drop out of the heavens. It was a very conscious adaptation of rules already enshrined in British constitutional law.
(As Frank points out, the same rules never applied to the Royal Navy - presumably because there was no history of the monarch using the navy to oppress the nation.)
Re stacking the deck, I have an easy way out of jury duty for you, the next time you are summoned for jury duty and they are going through the selection process just say "Jury Nullification"when they call your name, and see how fast you are out the door. Keep in mind that Jurors are almost never informed of this power. There was a case in the last couple years where a 17 year old (ish, I cannot be 100% on the details) was convicted of stautory rape of a 14 year old girl who went out of her way to come across as being much closer to his age. The male did jail time for the crime of believing her about her age. Had I been on that jury I would have definitely tried for a nullification (all things being simple and no other factors to consider he really did think she was older and she really did lie about her age) The deck is already heavily stacked in the prosecutions favor for many reasons.
Re good or bad for the defendant, it is almost never in your interest to talk to the police or anyone in law enforcement at any level. You know that bit in your Miranda rights that they have to read you upon arrest? The one that goes **“anything you say can and will be used against you in a court of law” ** THEY FUCKING MEAN IT. You can end up in jail while telling a cop why you are innocent by giving him evidence of another crime that you dont even know is a crime.
Actually I like your set up better, welcome to Gowachin Law. you will have to scroll down a little.
Have any borrowers gone to prison over “liar mortgages”? 
Nitpick: they don’t have to Mirandize you upon arrest. They just have to do it before asking any questions while you are in custody.
That’s pretty good, ignorance fought in 41 minutes.
Ok, I get that part. Is it so bad though, so have to make yourself available? I guess its putting a little bit of a burden on the defendant, but don’t you think its a fair burden? By that I mean, I would be totally opposed to a situation where the defendant would be severely inconvenienced, or severely pressured, or otherwise made to suffer while under custody. Asking him to give his version of the events doesn’t, to me, rise to that amount of suffering. I acknowledge now that it is putting a burden on him, but just a little, and still does it in a neutral way (we’re not saying “confess, you vagabond!”, we’re saying “so what happened? tell us in your own words”). Owing to that burden, would it be fair, in your eyes, if the courts were to balance that burden out by allowing the defendant to make a statement without being cross examined? This way, it tips the scales back the other way
(btw, I put this paragraph up out of order because I felt the point I’d make would be similar)
I can see the disadvantage in less articular defendants. They’ll also probably be predisposed to be poor or minorities. That’s a problem I didn’t consider. What if we used the free defendant statement without cross that I suggested above?
I’ve never served on a jury, and maybe its because I’ve seen too many Law & Orders, but my personal belief, however wrong, is that if you don’t testify for me, I’m going to be slightly suspicious of you. As a human being, I cannot help but wonder what it is you’re hiding if you don’t choose to tell your version of the events. I guess its good that I’ve never been on a jury huh? 
Hmm, their words might be the centerpiece, but now I’m conflicted on whether we should play to the jury’s biases or not. On one hand, I think that sure, juries will probably take the defendant’s words over that of someone else, so its unfair for him. On the other hand, they shouldn’t, and its not fair, and we shouldn’t bias the trial the other way just because we think the jury might be biased. They could be biased the other way too. Isn’t the only neutral way of making rules like this to ignore personal feelings on the matter and just tell everyone on both sides to be fair?
Oh yeah, I know all about that and I plan on keeping that a secret should I ever get selected.
In an adversarial system like ours, I would call this additional burden unfair and unwarranted. It’s not as though we have some plague of false acquittals that we need to push back against. Either the state can prove its case beyond a reasonable doubt, or it can’t. If it requires the accused to make their case for them on the stand, then something’s gone terribly wrong.
That would favor the defense in most cases, certainly. Cross-examination is the heart of the adversarial system. I don’t see any need for such a change, though - what’s the point?
It raises similar concerns, unless the statement is optional.
Jury instructions generally include a phrase to the effect of “A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.” So, we’re back to the question of how effective jury instructions are.
The system already tries to work around biases. This is why prior bad acts aren’t admissible as evidence (subject to several exceptions), for example, and why evidence where the risk of unfair prejudice outweighs the probative value is likewise inadmissible. This is the same logic behind excluding evidence pertaining to a sex-crime victim’s sexual predispositions and history. As long as human beings are deciding cases, human psychology must be considered. The alternative is false convictions and false acquittals…or jury-by-robot, I guess, given enough time.
The Federal Rules of Evidence are the result of many, many years of jurisprudence, and correcting problems as they arise. The same is true of the protections for the defendant that are enshrined in the Bill of Rights…they didn’t spring up in a vacuum, as I noted previously.