If you have been accused of a crime, it is only natural to want to take the witness stand to proclaim your innocence and defend yourself in court. But testifying in your own defense during a criminal trial is more complicated than just telling your side of the story. A criminal trial is filled with nuance, complex rules of evidence, trial strategy, and Constitutional rights. The stakes are high, and a mistake could cost you your freedom. That is why, in all but a few cases, I recommend that my clients NOT testify in their own defense.
A criminal defendant is allowed to testify in their own defense in a criminal trial. But most criminal defendants do not. As part of their defense strategy, most criminal defense lawyers will recommend that you not testify in your own defense and instead let your lawyer present your case.
The Fifth Amendment provides a criminal defendant with the right against self incrimination. This means you cannot be compelled to incriminate yourself and, therefore, cannot be forced to testify in your criminal trial. If you decide not to testify, the judge will instruct the jury that your silence cannot be used against you. The prosecutor cannot comment on your refusal to testify and will need to prove the case against you without your help.
It is rarely a good idea for a defendant to testify on their own behalf. In almost every case, the risk of what could come out on cross-examination outweighs any benefit that could be gained from hearing directly from the defendant.
When someone testifies at trial, they open themselves up to having evidence of any prior bad acts introduced as evidence. Even if these alleged misdeeds are unrelated to the crime you are accused of committing, the jury may use them to infer that you committed the crime in question.
Most criminal defense lawyers develop a defense strategy that does not require the defendant to testify and instead focuses on a lack of evidence and inconsistencies in the prosecution’s case.
One of the few exceptions is if your defense strategy requires that you raise an affirmative defense rather than simply denying that you committed the crime. For example, if you were acting in self-defense or swerved off the road to avoid an accident, you may need to testify to explain the reasons for your actions.
A criminal defendant is presumed innocent until proven guilty. The prosecutor must prove, beyond a reasonable doubt, that you committed the crime you were accused of committing. Typically, this is accomplished through testimony from police officers and other witnesses, and presenting physical evidence that the prosecutor believes will prove you are guilty.
The best defense, then, is to question the reliability and sufficiency of the evidence, the soundness of the police investigation, and the motivation of the accuser, and to highlight any inconsistencies in the prosecutor’s theory of the case.
A criminal trial is stressful. Even a well-prepared defendant can become nervous or confused and may respond poorly to questions, especially when being cross-examined by a skilled and experienced prosecutor. Most people do not perform well under this kind of stress, and they may appear agitated, irritable, or nervous. Even if you are not guilty, the jury might misinterpret these signs of stress as an inference of guilt.
Most defendants have little experience with the criminal legal system, and predicting how they will perform is impossible. Cross-examination can be incredibly stressful, especially when conducted by an experienced prosecutor who is trained to draw out information. Their questions may be confusing, and a seemingly small misstep can make an innocent defendant appear guilty.
Testifying in your own defense also runs the risk of muddying the waters. Instead of focusing on shoddy police work or inaccuracies in the prosecutor’s case, the jury might instead focus on whether you are telling the truth. The case then becomes a question of credibility, which will often end poorly for someone who is accused of a crime and has motive to lie. This can fundamentally change the dynamic of a criminal trial, as the jury will weigh the prosecution’s case against that of the defendant when in actuality, the defendant has nothing to prove.
Choosing whether to testify in your own defense is a complicated decision that should be made with advice from experienced legal counsel. In all but a few circumstances, not having the defendant testify will be part of the criminal defense lawyer’s overall defense strategy.
If you are facing criminal charges, you need experienced legal counsel who can protect your rights and defend you in court. When you work with Elmen Legal, criminal defense attorney Robert Elmen will explain the charges against you and develop a defense strategy geared to lead to reduced charges, a less severe sentence, dismissal of the case, or a Not Guilty verdict.
To learn more and explore your options, call (734) 707-8915 or contact Elmen Legal online to schedule a confidential consultation to discuss your situation and how Attorney Elmen can help.
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