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Your Right to Testify in Your Trial

If you are charged with a crime, you are known as a defendant. In a criminal case, whether in state or federal court, a defendant has an absolute constitutional right to testify in his or her own behalf at trial. In an interesting United States Supreme Court case decided in 1987, the United States Supreme Court held that even in a state which prohibited witnesses from testifying in a trial if their memory had been refreshed by hypnosis, that a defendant, under the Fifth and Sixth Amendments, had a right to testify in spite of the state’s rule against hypnotically induced testimony.

Your lawyer cannot wave your right to testify if you are a criminal defendant. It is your right, and you must decide, after consulting with your criminal defense attorney, whether to testify on your own behalf. The decision is usually made prior to a trial beginning, but very often, twists and turns in a trial necessitate a variation as to whether a defendant should take the witness stand. If a defendant decides to testify, the testimony must begin before the evidence portion of the trial concludes. There was a case in which the evidence portion of the trial was over and closing arguments were about to begin. The defendant then decided that, although he had previously decided not to testify, he wanted to do so. The trial judge refused the defendant’s request to testify, stating that he had changed his mind too late. The case went to the jury and the defendant was convicted. The court of appeals affirmed the trial court’s ruling.

In my forty years of experience as a criminal defense lawyer, I have found, as have my colleagues throughout the nation, that it is often better that a criminal defendant does not take the witness stand. There are many reasons for this. Not taking the witness stand certainly does not indicate guilt in any way. And the jurors will be so instructed by the trial judge as the trial begins and, again, when the trial concludes and the judge gives the jury instructions before they begin their deliberations. Very often, your defense attorney will advise you that he or she doesn’t think that the prosecution proved their case beyond a reasonable doubt and that, therefore, there is no need for you to be on the witness stand and risk a cross examination which may turn the tide against you. Of course, no one really knows what the jurors are thinking. And deciding whether an defendant should take the witness stand requires the savvy and experience of your criminal defense attorney, who will have been carefully observing the behavior of the jurors from the selection of the jury right on through the time when an decision must be made as to whether the defendant will testify. If have seen cases in which clients have gone against their lawyer’s advice and insisted on taking the witness stand. Usually, convictions follow. I understand how difficult it is not to tell the jury what you want them to hear. Nevertheless, you would be well advised to consult with and listen to the advice of your chosen criminal defense attorney in this regard.

Sometimes, a judge will want to advise a defendant that he has a right to take the witness stand, or that he does not need to do so. In my opinion, a trial judge should not make such inquiry since this is a matter which falls under the purview of an attorney client relationship, and the court should not invade that relationship by questioning the defendant in order to create a waiver should the issue come up under appeal. I have seen situations in which judges question defendants and the defendants make the mistake in believing that the judge is hinting that the defendant should or should not testify. Frankly, the judges couldn’t care less. The judges who make such an inquiry are simply trying to “protect the record” so that if a defendant is convicted, he cannot raise that issue on appeal.

The bottom line is this: whether to testify or not is a very important decision that should never be made without discussing it with your attorney, to your satisfaction. That way, you can make an intelligent decision that will affect your future.

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