You’re being tried for a serious criminal offense and you know that under the Fifth Amendment to the United States Constitution it’s your decision whether to testify or not.
Deciding whether to testify is a critical and strategic decision that might have significant long-term life-altering consequences. Before making the decision, you and your attorney should consider these three factors: Do you have credibility, composure, and can you be convincing?
Credibility is the linchpin to successful testimony by a defendant in a criminal trial.
When a defendant with prior convictions, especially those that affect the defendant’s character for honesty (e.g., a theft conviction), takes the stand, the prosecutor may be able to question the defendant about those convictions in an effort to establish that anything that the defendant says should not be believed. Essentially, the prosecution will argue that the defendant is a liar.
When a jury hears evidence that a defendant is not credible, the defendant’s testimony will likely be disregarded or even taken to be false, which can be disastrous to the defense’s case despite the defendant’s innocence.
Therefore, when the defendant has a damaging criminal history and there is even a small possibility that the prosecution will cross-examine the defendant on it, the defendant should reconsider testifying at trial.
Composure shown by a defendant while under cross-examination is a critical component to the successful outcome of the defense’s case, even if the defendant has no criminal history.
During cross-examination, which is laden with peril for even the most sophisticated defendant, the skilled prosecutor will attempt to trip up and cajole the defendant into saying things the defendant does not want to say to make it appear that the defendant is lying.
Moreover, during cross-examination, the defense must also consider the risk that a defendant will say something on the stand, without the defense attorney’s prior knowledge, that “opens the door” for other damning testimony to come in.
During cross-examination, even the most sympathetic, credible, and innocent defendant can become a tangled mess. The enormous pressure that a seasoned prosecutor can apply can reduce the most composed defendant to a seething and uncontrolled shambles.
Therefore, determining whether a defendant can be composed during cross-examination is of paramount importance.
If the defense team has any doubt, however minute, that the defendant lacks the personality or ability to maintain composure during the heat of cross-exanimation, it might be advisable that the defendant forego testifying at trial, particularly in light of the tremendous risk.
To avoid any risk that the defendant will disintegrate on the witness stand a better option is to have others (family, friends, and alibi witnesses) testify to the defendant’s innocence.
Convincing a jury that a defendant is not guilty in a criminal trial is not the defense’s burden; it’s the prosecution’s burden to prove that a defendant is guilty beyond a reasonable doubt.
During a criminal trial in which the defendant does not testify, the jury will focus entirely on whether the prosecution has met the high burden of proof or not.
Once the defendant testifies, however, jurors tend to focus solely on whom they believe– the defendant or the alleged victim. Rather than weighing the prosecutor’s case against the standard of proof (beyond a reasonable doubt), jurors tend to weigh the defendant’s story against the prosecutor’s or the victim’s story.
A defendant’s mere act of testifying may have the unintended effect of lowering the prosecution’s burden of proof to a preponderance standard (more probable than not) and possibly shifting the burden of proof to the defense. The burden of proof does not actually shift away from the prosecutor but once the defendant starts to testify, jurors tend to think that way despite jury instructions from the judge to the contrary. Most defendants lack the persuasive skills necessary to overcome a possible shift of the burden of proof to the defense.
Testifying at trial opens the defendant to intense and grueling questioning by the prosecution; depending on defendant’s criminal history, credibility, composure under immense pressure, and persuasive skills, in most cases, the benefit of not testifying at trial is far greater than the benefit of testifying.
Although under the United States Constitution, the decision whether to testify or not is lies solely with the defendant, most criminal defense attorneys advise their clients, regardless of guilt or innocence, not to testify unless absolutely necessary. This advice frustrates innumerable defendants who want to declare their innocence. Notwithstanding this frustration, it is prudent for a defendant to take time to seriously consider the advice given by defense counsel before deciding whether to testify.