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Jodi Arias: The Right to Testify

The sensational murder trial of Jodi Arias became the seeming theater of the absurd in the 18 days of testimony by Arias. Adding to the drama from the exhausting and often inconsistent proffer of facts from Arias, was the unusual role played by the jury. Arizona permits jurors to put questions to a witness, not directly but submitted first to the Court.

Lawyers struggle with putting a defendant on the stand. Experienced practitioners differ in philosophy; however, the consensus in most criminal trials is to have the defendant remain silent and not testify. Courts will instruct jurors that no adverse inference may be drawn from that silence. In Connecticut the courts refer to it in a standard instruction as the defendant’s “failure to testify.” To my mind that phrase adds a negative connotation, as the word “failure” implies a duty one is shirking.

The instruction embodies the Fifth Amendment right against self-incrimination. So important is that right that in an appeal I handled some years ago a trial judge became tongue tied and added to the standard instruction, “. . . and no presumption of innocence may be raised. . . .” The Appellate Court was particularly harsh in its criticism, “In making a connection between the defendant’s failure to testify and the loss of his constitutional right to be presumed innocent, the instruction not only altered the substantive meaning of the statutory requirement, it turned it on its head.”

The exception to the general practice of the defendant not testifying is most often found in cases of self-defense. The perceived need for the defendant’s testimony is that jurors must be able to conclude that her belief that she was about to suffer imminent, deadly harm is objectively reasonable. It can usually only be told through the defendant’s impressions of those stressful moments before the deadly act occurs.

In the case of Arias she, alone, possessed information that would potentially establish the defense. No one else was a witness to the bizarre incident. Eighteen days of examination, including an aggressive cross-examination and telling questions from the jury, demonstrated the risk that was involved in putting her on. One legal analyst observed that her guilt is not what is in issue–that being readily established so far by the evidence– but, rather, her 18 day “conversation” with jurors may be the factor that leads them to spare her life on conviction.

When a lawyer elects not to call the defendant most courts will canvass the accused, out of the presence of the jury. The purpose of the canvass is to protect the record on appeal, and to insure that the waiver is a knowing and voluntary choice by the defendant. In the instance that such a canvass does not occur, the later-convicted defendant may raise a collateral attack on the verdict claiming, “my lawyer never told me I could take the stand.” Courts refer to this as the “right to testify.” That “right” does not appear specifically in the Bill of Rights, but rather, through the years, has achieved constitutionally protected status.

The right stems, historically, from the fifth century Anglo-Saxon concept known as the “wager of law” where an accused swore an oath of innocence. As American law developed, at first defendant’s were deemed incompetent to testify. Eventually that practice eroded, and in 1948 The U.S. Supreme Court first referred to this as a right embodied in the Constitution, viewing it as a component of the accused’s right to a defense. In 1987 the case of Rock v. Arkansas found that this “right” stemmed from an amalgamation of rights in the due process clause of the Fourteenth Amendment, the Sixth Amendment right to confrontation, and the Fifth Amendment protection against self-incrimination.

If the Arias jury condemns her to death eventually her counsel’s decision to put her on the stand will be roundly scrutinized.

Rich Meehan