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Should I Testify in My Own Defense in a Criminal Trial?

It would seem almost naturally instinctive for an individual accused of a crime to rise in his own defense to address his accusers and to explain his innocence. Indeed, a criminal defendant’s choice not to testify tends, in the minds of many, to give rise to an inference of guilt. The right to testify in one’s own defense is a right guaranteed by the U.S. Constitution. However, the exercise of the right to remain silent, an equally sacrosanct right protected by the Constitution, should not be used to create any impression or appearance of guilt, due, in large part, to the manifold risks and complications that an individual exposes himself to in testifying in a criminal proceeding, such as, for instance, misstating facts, which could ultimately be used as incriminating evidence against him.
First, it is well to note that the Defendant has the initial “advantage” at the outset of the trial, due to the presumption of being innocent until proven guilty. In other words, the prosecution has the burden of proof, by which it must prove “beyond a reasonable doubt” that the defendant is guilty. Conversely, the defendant has no burden to prove anything, and the failure of the prosecution to carry its burden, will result in the defendant’s acquittal.
The prosecution attempts to meet its burden through the presentation of witnesses, such as police personnel and victims, and other evidence, in proving its case. The presentation of the defendant’s testimony cannot be expected to add much value in this context, especially in view of the associated risks of testifying. Some common strategies used, rather than offering the defendant as a witness, include discrediting the conduct of the police investigation; questioning the motives of the accuser; or exposing inconsistencies and inaccuracies in the evidence presented. These are strategies which are proven and effective and that do not require presenting the testimony of the defendant.
Accordingly, criminal defendants are generally advised not to testify in their own defense at trial. One of the great dangers of a defendant testifying in a criminal case is waiver of his right to remain silent which thus subjects him to cross-examination by the prosecution. While a defendant can still “plead the Fifth,” answering some questions, while refusing to answer others, creates an appearance of untruthfulness on the witness stand.
Further, criminal trials can be extremely emotional and stressful for defendants, making the defendant vulnerable to making mistakes in their testimony or creating misperceptions of their character during their examination by skillful, experienced attorneys. Some people do not perform well under stress either because they become irritated, nervous or fearful. Also, unfortunately, even though jurors are expected to be impartial in their fact-finding, many maintain biases against defendants simply because they are on trial. Moreover, instead of focusing on inconsistencies in the prosecution’s case, the jury might be tempted to simply try and determine whether the defendant is telling the truth. This turns the case into a question of credibility, which places the defendant at an extreme disadvantage, as someone, who has a motive to lie, and is inexperienced testifying at trial.
Further, when a defendant testifies at trial in a criminal case, she exposes herself to the risk of having any prior bad acts that she has committed introduced as evidence. Evidence of this conduct, while unrelated to the crime a defendant is accused of committing, may be used by the jury to infer that the defendant committed the crime in question.
It is ultimately the defendant’s decision whether or not testify in a criminal proceeding, but such a decision should be undertaken only with the sound advice and counsel of a qualified criminal defense attorney. And for the foregoing reasons, in all but a few cases, it is generally not recommended that she does so.
The attorneys at Tanner Law Offices can assist you or your loved ones in defending your rights and ensuring your rights are protected when you have been accused of committing a crime. Please contact our office at 717-836-0471 to schedule a consultation to discuss the specifics of your case.