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When Should a Defendant Testify at Trial?

Posted in Criminal Defense,General FAQ'S on May 21, 2019

As the defendant of a criminal case, the thought of testifying at trial can be daunting. Providing testimony as a defendant is not mandatory, but it may be part of your lawyer’s defense strategy depending on the circumstances of your case. Knowing when a defendant should testify at his or her criminal trial is part of what a criminal defense attorney does for clients.

The Right of a Defendant in California Not to Testify

California Criminal Jury Instructions, No. 355, gives a defendant the absolute constitutional right not to testify. No defendant needs to provide a testimony during a criminal trial in the state of California. It is against the law for the judge or jury to consider the fact that the defendant did not testify when determining a verdict. Lack of testimony from the defendant should not influence the conviction decision – or even come up in deliberations.

The purpose of the right not to testify is to protect the defendant. If the defendant does not want to testify at trial, he or she has the right not to without fear of negative repercussions to his or her case. This rule protects the defendant from taking the stand unprepared, or accidentally saying something that could hurt his or her case. Instead, the defendant has the right to deny taking the stand, and to instead hold that the evidence provided is not enough to prove guilt beyond a reasonable doubt.

Pros and Cons of a Defendant Testifying at Trial

Every criminal case is unique. Only an experienced criminal defense lawyer can advise you whether or not to testify at trial as a defendant. For the most part, however, testifying as a defendant is not a good idea. This is because even the smallest or most offhand remark could have repercussions that ultimately hurt your case. Most attorneys advise defendants in California to use their right not to testify. In some cases, however, testifying could lead to benefits for the case.

It is more likely for an attorney to recommend a defendant testify if the case does not have any other witnesses who were present at the scene. If the case does not have any supporting sources to provide additional information, the defendant’s account of what happened could be the only available evidence in the defendant’s favor. If the police report omitted important facts, for example, a defendant’s testimony under oath of the missing information could help the judge or jury receive a clearer idea of the event. In some cases, the defendant is the only party that can provide a clear picture of what happened.

A defendant’s testimony could hurt the case if the judge or jury does not empathize with the defendant. If what the defendant says during testimony creates a negative impression of the individual, it could bode badly for the outcome of the case. Creating empathy during a testimony is difficult, and takes a lot of training from attorneys. If the defendant appears tense, confused, nervous, or too nonchalant, the judge or jury may believe the defendant is lying – even if this is not the case. Furthermore, witness cross-examination can be difficult for a defendant to endure without saying or doing something incriminating.