Should You Testify at Your Criminal Trial?

Your Constitutional Right to Remain SilentThe Fifth Amendment to the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege against self-incrimination means that you cannot be forced to testify at your criminal trial. You may choose, instead, to remain silent.

Factors to Consider

The decision to testify or remain silent is one you will make in conjunction with your criminal defense attorney. While conventional wisdom dictates that, in most cases, the wise choice is not to testify, several factors must be considered.

No Inference of Guilt

The prosecutor may not comment on your refusal to testify; jurors may not infer guilt based on your silence.

Reasonable Doubt and the Presumption of Innocence

Fundamental to our system of criminal justice is the principle that every defendant is presumed innocent, until proven guilty beyond a reasonable doubt. This means that you do not have to prove your innocence; the burden rests entirely with the prosecution to prove each element of the crime charged, beyond a reasonable doubt. Thus, if the prosecution has not proved its case, or your attorney has succeeded in creating reasonable or your attorney has succeeded in creating reasonable doubt on cross-examination, then it is likely in your best interests to remain silent.

The Rigors of Cross-Examination

Cross-examination is not for the faint of heart. The prosecutor will exploit every opportunity to impeach your testimony, undermine your credibility, and poke holes in your story.

Otherwise Inadmissible Evidence

The scope of cross-examination generally is limited by the scope of the witness’ direct testimony. Your testimony inadvertently might “open the door” for the prosecutor to question you about evidence that otherwise would have been inadmissible (e.g., prior convictions or prior inconsistent statements).

Your Theory of Defense

Certain defenses (e.g., self-defense; entrapment; good faith) are more likely to carry the day if the defendant testifies. If you are relying on one of these defenses, you may want to testify, especially if you have no prior convictions or acts of dishonesty on your record, and you are able to offer a clear and plausible explanation for your actions.

Jurors generally want the accused to take the stand and proclaim his innocence or, at the very least, explain his side of the story. Even so, jurors know how much a criminal defendant stands to lose if he is convicted, and tend to view the defendant’s testimony with a degree of skepticism.

Jurors Want to Hear From the Defendant

Your Credibility as a WitnessIf the jury does not believe your testimony, they will convict you, regardless of the shortcomings in the prosecution’s case. A defendant’s testimony becomes the main event at trial, and the jury may decide the case based on whether or not they believe you, regardless of the weight of other evidence or the judge’s instructions on reasonable evidence or the judge’s instructions on reasonable doubt.

Talk to an Experienced Criminal Defense Attorney

Ultimately, the decision to testify or to remain silent is yours to make alone. An experienced criminal defense attorney can analyze the facts of your particular situation and help you make an informed decision that will protect your best interests.