When Should a Defendant Testify?

In any criminal case, the defendant has the right to testify and the right not to testify. If a defendant chooses not to testify, the fact that the defendant did not testify cannot be held against him in court. Furthermore a defendant in a criminal case is entitled to a jury instruction which informs the jury that the defendant has a constitutional right to testify and that the fact that the defendant did not testify cannot be considered as evidence against him at trial. The defendant is presumed innocent regardless of whether he testifies.

At Berry Law, some of our clients want to testify and tell their side of the story while others are terrified of the thought of having to answer questions in front of a jury and being cross-examined by a prosecutor who will accuse them of lying or only saying what needs to be said to save their own skin rather than to tell the truth.

The decision whether to testify at trial belongs solely to the client. While the lawyer can decide tactics and strategy, the lawyer does not get to decide if the defendant testifies. However, the lawyer will advise the defendant as to whether he believes the defendant should testify. The defendant may then follow that advice or reject it.

One of the dangers of a defendant testifying in a criminal case is that once he testifies, he has waived his right to remain silent and will likely be ordered by the court to answer questions if he refuses to do so after taking the stand. Criminal trials can be very emotional for defendants who have everything to gain or lose based on the verdict of the jury. This can be very stressful. Some people do not perform well under stress either because they become irritated, agitated or nervous. Another factor is the demeanor of the witness. Some people come off as credible and likeable while others appear cold and evasive.

One of the disadvantages a criminal defendant has on the stand is that he has not likely testified as much as the prosecution’s witnesses. In felony criminal cases, the prosecution’s witnesses often consist of law enforcement officers and expert witnesses who have testified hundreds of times if not thousands of times. These witnesses know what to expect. The government’s witnesses are often well trained and know how to look at a jury, how to answer a question, and how to withstand a difficult cross-examination.

While a criminal defendant’s attorney certainly can prepare him for questioning by discussing questions the attorney will ask and questions that the prosecutor may ask, there is no substitute for experience. Certainly mock trials and detailed interviews with the attorney can help a defendant prepare to testify. However, as the trial proceeds, a defense attorney may find that some of the topics the defendant wants to discuss are not as important as he once thought or that getting into those topics could do more harm than good.

The greatest uncertainty of a defendant testifying is how he will withstand cross examination. It is impossible for the defense attorney to know every single question the prosecutor may ask and there is always a concern that a good cross examination with well worded questions could completely undermine a defendant’s credibility. If the defendant’s credibility is undermined during cross-examination, it would have been better if the defendant had not testified at all. In most of the driving under the influence of alcohol cases, it makes little sense for the defendant to testify unless there is a specific fact that the defense needs to get into evidence. Most of the time the prosecutor will hammer the fact that the defendant admitted to drinking alcohol and that the completely sober police officer was in a much better position to objectively observe what happened during the traffic stop and DUI investigation. In these cases, the defendant’s testimony is often of little value. However, at Berry Law we have tried cases where the defendant’s statement was crucial to a DUI defense because the defendant was able to provide facts that undermined the prosecution’s case and were corroborated by other evidence.

Most sexual assault cases involving adults are “he said she said” cases. The issues are often was whether consent was given or whether one of the individuals was too intoxicated to voluntarily participate in sexual activity. Often in those cases the defendant should testify. However it is important to remember that the burden is the government to prove the case beyond a reasonable doubt and the defendant bears no burden of proving anything and is not required to testify. Sometimes in sexual assault cases the allegations are so outrageous or unbelievable that it is not worth the risk to have the defendant testify because the alleged victim has destroyed his or her own credibility.

However in many sexual assault cases where the alleged victim seems credible it is a good idea that the defendant testify so that the jury can hear the other side of the story.

In sum, whether a defendant should testify is a complicated, fact specific, question. There is no particular formula that will provide an objective answer. In short, a citizen accused and his defense attorney must determine on an individual basis whether the defendant’s testimony will help or hurt his case.

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