Laurent Sacharoff, University of Denver Sturm College of Law, has posted The Accused Speaks, which is forthcoming in the University of Chicago Law Review:
In the founding era, criminal defendants were disqualified from testifying under oath at their own trials. But they were permitted to make an unsworn statement to the jury presenting their factual account. Throughout the 18th century in both England and its North American colonies, criminal defendants regularly told the jury their side of the story, unsworn and uncrossed.
By the latter 18th century, this practice had become a common law right. It allowed defendants to present facts, address prosecution facts, cross-examine witnesses, and make legal arguments. More importantly, defendants who made an unsworn factual statement did not have to endure cross-examination. Nor, therefore, could they be impeached with prior bad acts, convictions, or arrests, as could other witnesses.
With the advent of the Revolution in North America, the new states began to expressly protect this common law right to be heard in their constitutions. As this Article shows for the first time, Benjamin Franklin created the right in 1776 in his markup of the Pennsylvania Declaration of Rights: the accused "hath a right to be heard by himself." Numerous early states quickly followed.
This Article is the first to trace the origins and ambit of "the right to be heard," from its common law origins to its creation as a constitutional right. It examines founding era historical sources in a new light, including thousands of trial transcripts from London and the colonies, letters, caselaw, and state constitutional drafting history.
This early history forms the core of this Article. Nevertheless, it also sketches the subsequent and contradictory career of the right to be heard. On the one hand, it atrophied when defendants became competent to testify in the latter 19th century; on the other, even today the right remains on the books in 37 state constitutions. This Article therefore surveys how contemporary courts have wrestled with this vestigial constitutional right and briefly concludes that defendants should retain some version of it alongside the right to testify.
--Dan Ernst
