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To Testify or Not to Testify....

Many people mistakenly believe that it is the lawyer who decides whether his/her client testifies in a criminal case. In fact, the decision to testify lies solely with the defendant (the person charged with the crime).

In the Zimmerman trial, the judge today insisted on questioning Mr. Zimmerman directly, as she asked him whether it was his decision, after consulting with his attorneys, not to testify. The judge questioning the defendant directly is somewhat unusual. Normally, a statement by defense counsel that the defendant has chosen not to testify suffices. But, because of the notoriety of the Trayvon Martin/George Zimmerman case, I believe that the judge wanted to be very cautious and wanted to make sure that the record was clear that George Zimmerman freely and voluntarily waived his right to take the witness stand and to testify on his own behalf. I believe the judge did this because, if George Zimmerman is convicted of any offense (second degree murder, manslaughter, aggravated battery or aggravated assault, or any other lesser included offense) in his trial, the judge wants to preclude George Zimmerman from arguing on appeal that he wanted to testify, but that his lawyers wouldn’t let him. I also believe that George Zimmerman’s sometimes strange and bizarre facial expressions and reactions during the trial have given the judge pause and prompted her to go out of her way to protect the record.

Of course, the jury will be instructed that they are not to consider in any way the fact that George Zimmerman has chosen not to testify in his own case.

I believe it was a very wise decision by Mr. Zimmerman and his attorneys that he not testify. He had given conflicting statements shortly after the shooting of Trayvon Martin. Also, I have serious questions as to whether George Zimmerman would be a good witness, especially when he would have been cross-examined by the prosecutor.

I think that the defense case went about as well as it could have considering the rulings of the trial judge. If I had to guess on a verdict, I believe that George Zimmerman will be found not guilty because a reasonable doubt exists and because the State of Florida has not, in my opinion, proven George Zimmerman guilty beyond and to the exclusion of every reasonable doubt. The injuries to George Zimmerman will prove to be critically important defense evidence.

For those who are interested, the Fifth Amendment to the United States Constitution contains a clause that lawyers and judges refer to as the “self-incrimination clause”. It provides that “no person…shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination applies in federal and state cases throughout the United States.

When juries are selected, a process known as voir dire, the judge and the lawyers, especially the defense lawyers, question the prospective jurors to gain assurances that, if selected as a juror, they will follow the court’s instructions and not consider in any way the fact that the defendant does not testify on his/her own behalf. This constitutional right against self-incrimination is so important that inappropriate comments by a prosecutor during a trial making reference to the fact that a defendant chose not take the witness stand is a basis for a mistrial or a reversal of the conviction on appeal. There are many cases in which prosecutors inappropriately, sometimes by mistake, sometimes by incompetence, and sometimes intentionally make reference to a defendant’s not testifying. This conduct is inexcusable under any circumstances and, sometimes, if the court considers the prosecutor’s comments to constitute prosecutorial misconduct, the trial may end without a verdict and the court may prohibit a retrial.

Of course, what I have written above is very general and basic. The law on inappropriate comments by prosecutors relating to the Fifth Amendment and other possible prosecutorial misconduct is very technical and case-specific.

It should be noted that in the overwhelming majority of criminal cases, both state and federal, the defendant does not testify on his/her own behalf. Having defended criminal cases for forty years, I want to assure you that a defendant not testifying is not, in any way, an indication of guilt. It is merely a strategic and tactical decision made after extensive consultation with defense counsel based on the evidence presented during the trial.

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