If you believe you were falsely charged with a crime, or were justified in doing what you did, you may be eager to take the witness stand and tell your side of the story. Still, no matter why you find yourself in a criminal trial, you may be nervous about testifying in court. Here are some things to think about in deciding whether you should take the stand, and what to expect when testifying in court.
Simply put, a defendant can be a witness in their own criminal case. If you have been charged with a crime, you have the right to testify on your own behalf, and to raise your own defense. However, most criminal defendants don’t testify in their criminal trials. In almost every case, a criminal defense attorney will recommend that you remain silent and let him or her present your case for you.
The Fifth Amendment of the United States Constitution says you have the right not to incriminate yourself. That means that you can not be forced to testify against yourself in criminal court. If you and your criminal defense lawyer decide it is better that you not take the stand, the prosecutor or judge cannot overrule that decision. Instead, the judge will instruct the jury not to use your silence against you, and the prosecutor will need to prove your guilt beyond a reasonable doubt without your help.
It is almost never a good idea for a criminal defendant to testify in their own defense. In almost every case, the risks of what could come out on cross-examination outweigh the benefits of getting the story from the defendant directly. Remember that jurors usually will not weigh what you say about yourself as heavily as what others say about you. Your testimony will necessarily be “self-serving”. If there is another way to present your side of the story or show gaps in the prosecution’s case, your criminal defense attorney will likely recommend you use that instead.
One exception to that rule is where your legal strategy is to raise a justification or defense for your actions, rather than simply say “I didn’t do it.” If you were acting in self defense because you were being attacked and could not retreat, or swerved off the road because you were trying to avoid hitting someone, you may need to take the witness stand to explain the legally justifiable reason behind your actions.
Whether you are on the witness stand or not, the jury will be looking at you throughout the criminal trial. Anything you can do to separate yourself from the person being described by police or the prosecution’s witnesses can help create reasonable doubt. By dressing professionally -- in a suit if you have one -- you can impress upon the jury that you aren’t the type of person who would do what the prosecutors are saying.
When we argue, we often like to hurry to contradict false statements. When you are testifying in court, this can become a tell for jurors trying to sniff out lies. Even if you are simply taking a moment to collect your thoughts, if you have answered other questions quickly, your relatively slow response to important questions by the prosecutor or even your own lawyer could hint that you are making up your answers. One easy way to counter this is to take your time answering, every time. When you get ready to answer, count to 5 first. This will help you seem calm and put together, and keep the jury from reading into your silence.
It is tempting to try to over-explain yourself while testifying in court. You may disagree with how the question was asked, or feel like simply saying yes or no will leave jurors with the wrong impression. However, the prosecutor may be counting on your answer to bring in issues that he or she could not legally ask you about directly. Don’t take the bait. Only answer what was asked of you. If you feel like you need to explain further, look to your criminal defense attorney to give you a chance to give context to your answer.
One of the biggest mistakes defense witnesses fall into is arguing with the prosecutor while testifying. In fact, when you take the stand as a criminal defendant, especially in a case involving anger or violence, the prosecuting attorneys will try to make you lose your temper to show you are more likely to do what they say you did. Keep your cool. Remember that they are trying to bait you and don’t give them the satisfaction of seeing you angry. Save your anger for outside of the courtroom.
The only way you will be able to do many of the things described here is if you have practiced being cross-examined before going to court. No one likes being cornered, feeling stupid or being caught off guard, but those are exactly the feelings that the prosecutor will try to create in you. By practicing feeling that way and reacting positively, you can be ready so their tactics won’t surprise you on the stand. Since criminal defendants have rights to see evidence that will be used against them ahead of time, your criminal defense attorney can practice showing you the “smoking gun” picture, text message, or other evidence so that you can control your reaction, even under the stress of the trial.