Should A Defendant Testify at Trial?

Witness addressing the courtroom in a trial

When you have been accused of a crime, it is natural to want to defend yourself and explain why you are innocent. So when people ask, “Should a defendant testify at trial?” many are surprised to learn that, in all but a few limited circumstances, the answer is generally “No.” Except in rare situations, a defendant testifying in court rarely works to their advantage but has the potential to destroy their case.

The Presumption of Innocence

A criminal defendant is presumed innocent until proven guilty. To secure a conviction, the prosecutor must prove, beyond a reasonable doubt, that the defendant committed the crime of which they are accused.

In most cases, a criminal defendant testifying in court adds comparatively little to the defense but exposes the defendant to the risk that something could go wrong. Therefore, in all but a few limited circumstances, it is best for a defendant not to testify at trial. Instead, it is usually better to focus on discrediting the prosecution’s witnesses, addressing inconsistencies in the prosecution’s theory of the case, questioning the accuser’s motives, and showing why the prosecution has failed to prove their case beyond a reasonable doubt.

Does a Defendant Have to Testify?

Under the Fifth Amendment to the U.S. Constitution, a criminal defendant has the right not to testify, and their decision cannot be held against them.

In all but a few circumstances, I recommend that my clients do not testify in their own trial. Instead, I tell my clients to assert their right to remain silent and let their attorney present a case that focuses on reasonable doubt, the burden of proof, and the presumption of innocence.

Why a Defendant Testifying in Court Is a Bad Idea

A defendant testifying in court is rarely a good idea. It introduces too much uncertainty, and too many things can go wrong. In most cases, the risk of something bad happening during cross-examination far outweighs the potential benefit to be gained by a defendant testifying in court.

During a trial, jurors may wonder whether the defendant will testify. They may ask themselves why the defendant doesn’t just take the witness stand and say they didn’t do it. However, there are strategic considerations about whether a defendant should testify. Jurors generally give more credibility to what someone else says about you than what you say about yourself. Proclaiming your innocence by testifying at trial may be perceived as being self-serving. In most cases, there is another way to present your side of the case without exposing you to the risk of cross-examination.

When Should a Defendant Testify?

There must be a very compelling reason for a defendant to testify in their own defense. The primary exception is if your legal strategy requires you to justify your actions rather than just saying, “I didn’t do it.” For example, you might consider testifying if you were charged with assault and are claiming self-defense, or if you need to explain that you swerved off the road to avoid hitting someone. But otherwise, there is rarely much to be gained by having a defendant testify in court.

Pitfalls of a Defendant Testifying in Court

A defendant can present credible, reliable testimony during direct examination by their own lawyer. But any benefit gained during direct examination can quickly disappear when a defendant is questioned by an experienced prosecutor who is trained to draw out information and use it to make a defendant look guilty.

During cross-examination, the prosecutor has wide latitude to ask questions about almost anything in a defendant’s background, including the defendant’s prior criminal record, however minor. In the hands of an experienced prosecutor, even the most minor transgression can be used to show that a defendant is a habitual offender.

There is simply too much risk that a defendant will become confused during cross-examination or incorrectly answer a question they did not fully understand, or that the prosecutor will question the defendant’s reliability or make them appear guilty.

There is no way to “win” on cross-examination. Often, the best a criminal defendant can do is withstand it while taking as little damage as possible.

Contact The Lebedevitch Law Firm, LLC, for Aggressive Legal Defense

Deciding whether a defendant should testify in court is a decision that should be made with advice from a qualified criminal defense attorney. In all but a few circumstances, it is usually best if a defendant does not take the witness stand in their own defense.

If you have been accused of a crime, you need experienced legal counsel who can protect your legal rights and fight for a reduction in charges, a less severe sentence, dismissal of the case, or a Not Guilty verdict. Connecticut criminal defense attorney Stephen Lebedevitch will carefully evaluate your case, help you explore your options, and defend you in court. We invite you to contact The Lebedevitch Law Firm, LLC today to begin preparing your defense.

Categories: Defense Advice