Anna Roberts (Seattle University School of Law) has posted Reclaiming the Importance of the Defendant’s Testimony (University of Chicago Law Review, Vol. 83, 2016) on SSRN.
Here is the abstract:
Implicit courtroom stereotypes are an urgent problem. When, as is disproportionately the case, trial defendants are African-American, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, and guilt. Implicit social cognition reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life.
Yet current case law frequently chills defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multi-factor test, of which one factor is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert the factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typically permitted, and defendants frequently silenced, but also that a valuable opportunity to tackle courtroom bias is lost.
This Article proposes that the “importance of the defendant’s testimony” factor should be reclaimed as a means for defendants to argue that the individuating information that their testimony can offer militates against permitting impeachment. Where the defendant’s race risks triggering stereotypes that threaten the presumption of innocence, individuation represents a crucial part of the struggle for a fair trial.