The Dilemma of the Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted


  • I thank Erin Choi, Joanna Davella, Drucy Glass, Matthew Jury, Lei Young, and Amber Whitfield for their research and data-gathering assistance. I thank Steve Clymer, Sherry Colb, Ted Eisenberg, George Fischer, Steve Garvey, Sam Gross, Sheri Johnson, and Faust Rossi for their helpful suggestions and comments.

*Professor of Law, Cornell Law School, 110 Myron Taylor Hall, Ithaca, NY 14853; email:


This article examines the conventional wisdom that innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrate that factually innocent defendants with criminal records do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? Ninety-one percent of factually innocent defendants with prior records declined to testify compared to the 55 percent rate at which defendants with prior criminal records declined to testify in a four-county sample of criminal cases. Why the difference? In the innocence cases, the primary reason counsel give for not taking the stand is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record, and that, despite any limiting instruction the court might give, the jury would infer that they were guilty based on their prior misdeeds. If one assumes that the defendants in a four-county sample are guilty, and that both the innocence sample and the four-county sample are reasonably representative, then there is a statistically significant association between defendants with criminal records failing to testify and innocence. Because the current legal regime appears to disproportionately discourage defendants, even factually innocent defendants, from telling their story at trial, the law should be changed. Only prior convictions for perjury should be potentially available for impeachment purposes.