To Testify or Not Testify: That is the Question

The high profile murder trial of Jodi Arias captured the attention of the nation.  It had everything- sex, gore, and plenty of drama.  It also highlights a legal issue- whether or not a defendant should testify in their own defense at trial, thus waiving their Fifth Amendment right against self-incrimination.  This is a dilemma that faces criminal defense attorneys every day.  It can be one of the most important trial strategy decisions a defense team can make, and cases are won and lost by this factor.

The general rule of thumb that most criminal defense attorneys abide by is to not have their client testify, if possible.  The primary reason for this is that if they do testify, they face cross-examination by the prosecutor.  In cross examination, the prosecutor can ask leading questions forcing the defendant to make admissions that could connect them with their charged crime.  Even for innocent defendants who don’t have anything to hide, cross examination can flush out damning information.  This can also be an issue for defendants who simply don’t present well.  If they get flustered under pressure or are quick tempered, this will not play well in front of a jury.

Another reason a defendant may not testify is because they have no burden of proof- they don’t have to prove their innocence- rather, the prosecution has to prove them guilty beyond a reasonable doubt.  If the prosecutor doesn’t have the evidence to make their case, the best course of action may be to present no evidence.

Unfortunately, this rule of thumb is not so simple.  The defendant may have a defense they can raise that only the defendant can advance through their testimony.  This was the case in Jodi Arias’ trial.  She made a claim of self defense, and that can only come from her testimony because no other witnesses were present during the killing of her boyfriend.  The evidence in her case did not allow her to refrain from testifying- she admitted killing him, and so she had to explain why her actions were justified.  Yet, it exposed her to hours and hours of cross-examination by the prosecutor, and she was forced to walk through how she killed him in detail, many times.

Defendants may also want to testify to avoid the idea that they are hiding something from the jury by not taking the stand.  Even though judges are required to instruct jurors that a defendant’s decision to remain silent cannot be used against him or her, juries can sometimes draw their own conclusions in the deliberation room.

Ultimately, the defendant is the person who has the final say over whether to testify or not.  Even if their lawyer advises against it, the defendant has a constitutional right to testify if they want to.  Sometimes it pays off, other times it doesn’t- just ask Jodi Arias.

About the Author: Colin McCallin is a partner in the law firm, Hebets & McCallin, P.C., located in Denver, CO.  He has pursued criminal trials as both a prosecutor and criminal defense attorney.

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