Should a Defendant Testify at Trial?
Should a defendant testify at trial? This is one of the biggest strategic decisions for defense lawyers and their clients to make during a criminal jury trial. Regardless of what the criminal defense lawyer advises their client to do, the defendant holds the absolute power to make the final decision about whether they want to testify at trial. Even so, clients often listen to their attorney’s advice about this monumental decision before deciding what they will do.
Why the Defendant May Not Testify?
Fifth Amendment, Fifth Amendment, Fifth Amendment. The Fifth Amendment protects against forcing a defendant to testify at trial. It declares no person “shall be compelled in any criminal case to be a witness against himself.” The judge will give an instruction to the jury that the defendant is not forced to testify. The judge will also instruct the jury that if the defendant chooses not to testify, then it shall not use that decision against the defendant. Defense attorneys can talk about the presumption of innocence and the Fifth Amendment’s right to remain silent throughout the trial, such as in voir dire (jury selection), opening statements, and closing arguments. If the prosecution does not meet its burden and prove its case, then there is often no need for the defendant to testify.
Did the defendant already give a statement prior to trial? Did that statement get entered into evidence during the prosecution’s case-in-chief? If the jury already watched the defendant give a statement in a video recording, then there may not be any need for the defendant to give another statement by testifying at trial, especially if you are satisfied with the original statement.
In the same vein, the defendant’s testimony may not add anything substantially to the case. All the testimony you desire, all the facts you were looking to have come out, may have already been put into evidence at the trial. At that point, there may just not simply be a need for the defendant to testify.
There are many other considerations why a defendant may not testify at trial, but a very simple one could be that the defendant simply does not want to. As it is their choice on whether or not to testify, they may be against it. A defense attorney who strongly advises their client to testify, may ultimately listen to their lawyer and decide to testify. But if the client still does not want to testify, then you must abide by their wishes.
Why Should the Defendant Testify?
Despite the judge’s jury instructions stating that a defendant does not have to testify at trial, the jury often wonders throughout the trial about whether the defendant will testify. It is no secret that some jurors will take it as evidence of guilt, if the defendant does not testify at trial. They think: why don’t they just get up there and say they did not do it? Because of those strong feelings by jurors, defense attorneys may feel compelled to have their clients testify. Defendants may even feel compelled to testify.
Another reason in favor of the defendant testifying is that there may be no other means to explain what happened. Sometimes, there is no video evidence of an incident. Sometimes, there are no witnesses besides an alleged victim and the defendant. In those instances, there would be no other person to get the facts out for the defense, but the defendant.
Similarly to the decision not to testify, the defendant may adamantly demand that they testify at their trial. In that instance, you must similarly abide by your client’s wishes. It is important to discuss with them that they will be placed under oath and be subjected to cross examination by the prosecution.
The choice of whether a defendant should testify at trial is sometimes excruciating to make. It can make or break a case. Some think that the trial is over once the jury is selected, because jurors have preconceived notions before they even hear any testimony. But, defendant’s testifying at their own trial is a seminal moment. It can provide great theater. And, jurors will be tuning in to the defendant’s testimony as much as any other witness in the trial. Therefore, you can certainly win or lose your case based on the defendant’s testimony. This is why it is such a debated question about whether the defendant should do so. You often evaluate whether you made the correct choice after the jury renders its verdict. Right or wrong, it is easy to think about this important decision after the fact.
Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is also an adjunct professor at the University of Minnesota Law School. Criminal Defense Lawyer Woodbury MN; Criminal Attorney Woodbury MN; and Criminal Trial Lawyer Minnesota.