The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, is Either of Them Safe?

In examining whether real jurors are upholding the presumption of innocence and the privilege of a criminal defendant not to testify, it was determined that these limitations were insufficient to outweigh what these jurors brought to their responses. As opposed to mock jurors, real jurors heard actual preliminary instructions, opening statements, closing arguments and final instructions. Only real jurors got to sit in trial and observe real defendants for days at a time, note whether they testified or not, and spent hours or days in deliberations. In the end, it is only real jurors who can bring all of this information and experience to survey responses. This article focuses on whether and how often these jurors, into whose hands our judicial system ultimately entrusts the presumption of innocence and the Fifth Amendment privilege, applied and upheld these legal concepts. It frames these fundamental protections by their histories, purposes, and applications to shed further light on how effectively jurors uphold this trust. Central to this analysis is whether jurors generally understand and follow their instructions at trial, and whether these particular jurors did so. This article also highlights how the United States Supreme Court has irrefutably and conclusively presumed that they do; a presumption that is not only factually unproven, but, as the overwhelming weight of empirical research shows, is clearly false. Applying this presumption to criminal defendants at trial, the Court's own precedents show, is a clear violation of the Due Process Clause. Finally, this article discusses the movement toward jury reform, highlighted by recent efforts in Florida and California, and it suggests where such efforts can best be concentrated.