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 Firm, 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
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 Firm 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.