Juries, Implicit Bias, and the Silencing of Criminal Defendants

Criminal defendants are often silenced at trial because they fear that prosecutors will make devastating use of their prior convictions on cross-examination. Courts are complicit, since they frequently fail to do what the case law tells them to do: weigh the risk that if they allow this kind of impeachment defendants will be deterred from giving important testimony. Defense attorneys could help remedy this, by pointing out that one reason this testimony is important is that it can individuate—or paint a unique picture of—a defendant, and thus help reduce the impact of jurors’ stereotypes.

“The importance of the defendant’s testimony”: The case law roots

Two D.C. cases from the 1960’s—Luck v. United Statesand Gordon v. United States—underlie our contemporary rules on impeachment by prior conviction. These decisions entrusted to trial judges the task of deciding when prosecutors may impeach—or attack the credibility of—criminal defendants by asking them about their prior convictions. They laid out factors that trial judges might want to consider, and emphasized one in particular: above all, judges were supposed to weigh the risk that important testimony might be kept from the jury by defendants who preferred to remain silent than to be asked about their prior convictions. As the Luck court put it, there might be “cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.” Thus, a general principle was established: the more important the defendant testimony, the more hesitant courts were supposed to be to permit this kind of impeachment.

The case law roots become twisted

In 1976, the 7th Circuit decided Mahone, a case that would prove crucial to the modern rules on impeachment by prior conviction. The court affirmed that even after the 1975 enactment of the Federal Rules of Evidence, courts deciding whether to admit felony convictions for impeachment were still to consider the same kinds of factors mentioned in Luck and Gordon. But instead of the nuanced discussion in those cases, Mahone simply provided a bare-bones list of five factors, the fourth of which was “the importance of the defendant’s testimony.” This list of factors gained great popularity, and is now applied in almost all federal circuits, and many of the states.

In two separate ways, Mahone threatened the power of this factor as a tool for the defense. First, through its inclusion in this bare-bones list, the “importance of the defendant’s testimony” factor lost its status as the most important consideration. Instead, it became just another factor for courts to run through. Second, stripped of its context, the phrase “the importance of the defendant’s testimony” was at risk of being misunderstood by courts and advocates.

This factor has indeed been misunderstood by courts and advocates. In many instances its original meaning has been inverted. Instead of finding that the more important the defendant testimony the more it needs to be heard, courts often find that the more important the defendant testimony the more it needs to be impeached. Defense attorneys frequently adopt this same inverted meaning, with the result that they oppose impeachment on the grounds that their clients’ testimony is—as one brief put it—“not that particularly important.”

Because of this and other trends in the case law, prior conviction impeachment is routinely permitted, defendants are routinely silenced, and jurors are deprived of all that they could learn from their testimony. A recent study of DNA exonerees revealed that despite their factual innocence, ninety-one percent of those with prior convictions waived their right to testify at trial. The most common reason given by their counsel was the fear of the impact of impeachment by prior conviction.

The exonerees were right to be fearful, both that they would be impeached and that the impeachment would harm them. Prosecutors strive to use defendants’ prior convictions as impeachment material in the vast bulk of cases that offer them that opportunity, and most cases do: a large proportion of defendants have prior felony convictions. Allowing the jury to learn of a defendant’s criminal record increases the rate of conviction by as much as twenty-seven percent.

Defendant silence and implicit racial stereotyping

One of the dangers of defendant silencing is that when defendants remain silent, implicit—or unconscious—stereotypes on the part of the fact finders may spring up to fill the silence. It appears not to be the case, in other words, that when faced with a defendant who exercises his or her right not to testify jurors reserve judgment and hold fast to the presumption of innocence while they await the remaining evidence. Their minds, rather, seethe with premature assumptions that, in the absence of defendant testimony, the defense may have little chance to dispel.

In the trial context, these stereotypes are deeply threatening to the concept of fair and accurate fact-finding. Where defendants are African-American, for example, research suggests that jurors may unconsciously associate them with concepts such as violence, weaponry, aggression, and—most disturbingly—criminal guilt. Nor are implicit biases such as these simply harmless mental quirks. Rather, they affect the key tasks that we rely on jurors to perform: evaluation of evidence, recall of facts, and the forming of decisions and judgments, including judgments of guilt. With guilt or elements of guilt pre-determined in jurors’ minds, both the right to a fair trial and the presumption of innocence are under threat.

Solutions to the urgent problem of implicit juror stereotypes are elusive. Since these stereotypes are not easily accessible to the conscious mind, simply questioning potential jurors during jury selection fails to identify those whose thought processes might be most problematic. While several other initiatives have been suggested and attempted, including jury education, jury instructions, and even having jurors sign a pledge that they will not decide the case based on biases, nothing approaching a panacea has been discovered. This is unsurprising, given the deep roots, and pervasive reinforcement, of this kind of bias. Rather, what is needed is a multi-faceted approach, and, in an era of courthouse budgetary challenges, methods that require no new structures or resources are particularly desirable.

Individuation: “the importance of the defendant’s testimony” reclaimed

A technique called individuation—bringing an individual to unique life—can make it more likely that judgments about that individual are based on the evidence rather than on stereotypes. Experimental research suggests that this kind of individuation can be performed by techniques such as an individual narrating experiences from his or her life: just the kind of thing that a defendant does when testifying.

For example, one study assessed the extent to which African-American stereotypes held by a group of study participants had been brought to mind—or “activated”—after just fifteen seconds of exposure to an African-American student. The other group of study participants listened to the African-American student talk about her experiences for twelve minutes before their levels of stereotype activation were assessed. Stereotypes had been activated after just fifteen seconds, but after twelve minutes there was no evidence of stereotype activation. As the study’s authors describe their results, “[t]he initially activated stereotype had dissipated over time.” In another study, participants read a five-page transcript of a telephone conversation, in which the stereotyped individual described his or her experiences and actions in three situations. Having read the conversation, the study participants relied on the details about individual behavior in evaluating his traits, rather than on stereotypes.

Individuation offers one way in which defense attorneys might reclaim the “importance of the defendant’s testimony” prong as the tool for the defense that it was initially designed to be. Defense attorneys should start reminding judges that where defendant testimony is important to the search for truth they should be wary of permitting impeachment. They should consider arguing that one reason that defendant testimony is important is that by permitting individuation it may help combat the impact of stereotypes on jury judgments, and thus help protect the right to a fair trial and the presumption of innocence.

Not a cure-all

This proposal does not pretend to be a cure-all. I have written elsewhere about the need to educate potential jurors about implicit bias, and this proposal is designed to complement—not supplant—that suggestion. I have also written elsewhere about the many flaws in the very concept of impeachment by prior conviction. As Judge Kozinski has recently advocated, the ideal—but unlikely—solution would be to abolish the entire enterprise.

This proposal also does not suggest that it will always be wise for a defendant to testify. Defendants who testify are vulnerable to many other types of impeachment, and also vulnerable to stereotyped thinking: everything that defendants say, and the way in which they say it, could potentially inspire or confirm stereotypes. Defense attorneys do and should seek other means of bringing their client to life as an individual in the courtroom, whether through voir dire, through evidence other than defendant testimony, or through their interactions with their client. Research supports the idea that individuation can be accomplished through means other than an individual narrative from a stereotyped individual. In some studies, for example, an individual narrative about, rather than from, a stereotyped individual helped to lessen the effects of stereotypes on the participants’ judgments of that individual.

Rather, what I propose is that the “importance of the defendant’s testimony” consideration be restored to its original status as a tool for the defense—and for all who are interested in getting nearer to the truth in the courtroom. Its usefulness has largely been lost at just the time when our growing understanding of implicit stereotypes reveals its role to be crucial. A test that generally serves as a mere rubber-stamp for impeachment could become a forum for the discussion—and combating—of the extraordinary threat that implicit stereotypes pose to criminal defendants and to the presumption of innocence.

This is an adaptation of an article that will appear in its entirety in the University of Chicago Law Review. The original article can be read here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2620005.