![]() ![]() Commenting on his state’s newly enacted statute in 1867, Massachusetts’ Supreme Court Justice Seth Ames argued that allowing defendant testimony would “destroy the presumption of innocence.” 5 In light of jurors’ inevitably negative reaction to defendants who chose silence, Ames predicted defendants would have “practically no option at all” the new right will “ compel the defendant to testify” and “all will use it.” 6 ![]() As reformers first ushered in an age of defendant testimony through statutes over a century ago, critics predicted dire consequences for the purported beneficiaries of the new right. #Festify unexpected character ecountered trialDespite regular appeals to historical intent and textual fidelity in other contexts, judges and academics across the ideological spectrum embrace the upstart constitutional right as an enlightened evolution, akin to the elimination of trial by ordeal. 1 In fact, it was only a quarter century ago that the Supreme Court swept away the last vestiges of the testimonial prohibition, belatedly recognizing a criminal defendant’s constitutional “right to take the witness stand.” 2 To justify its atextual ruling, the Court channeled “the considered consensus of the English-speaking world” that there could be “no rational justification for prohibiting the sworn testimony of the accused.” 3 Legal commentators applauded. For much of American history, criminal defendants could not testify. ![]()
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