Should You Testify In Your Criminal Trial?

When you are a defendant, you are the ultimate decision-maker. Though a criminal defense attorney can help counsel you and determine the trial strategy and tactics, the biggest decisions are up to you. One of the most difficult decisions for a criminal defendant to make is whether or not to testify in their criminal trial. Though it may seem obvious that you would want to tell your side of the story, there are pros and cons of having a criminal defendant testify. You should consider speaking with an experienced criminal defense attorney to determine if testifying in your criminal trial is the right choice for you, or if the risks may outweigh the benefits. Call the Law Office of Faraji A. Rosenthall at 703-934-0101 to speak with our Virginia criminal defense lawyers about your case.

Constitutional Right to Testify

Keep in mind that you have the right to choose whether to testify. Although a criminal defense attorney may express a recommendation one way or the other, they may not forbid you from testifying or otherwise infringe on your right if that is what you choose. Similarly, you have the right against self-incrimination. If you do not want to testify, you cannot be forced to, either by your lawyer, opposing counsel, or the judge. You should, however, consider the advice of your attorney when making the decision to ensure you are informed about possible consequences.

Pros and Cons of Testifying as a Criminal Defendant

In making this critical decision, below are a few of the advantages and disadvantages of choosing to testify.

Waiver of Privilege Against Self-Incrimination

The right to remain silent is one of the foundations of our criminal justice system. The Fifth Amendment protects you from making self-incriminating statements, and your silence cannot be used against you. When you choose to testify at trial, however, you often waive that right because you are choosing to make statements about the potentially incriminating subject matter. The legal effect of this waiver is that you may be directed to answer questions that you otherwise may have been protected from having to answer. If you do not want to have to answer questions about a potentially incriminating topic, it is often best not to testify.

Impression on the Jury

You must take into consideration how the jury will perceive you. In most cases, the jury will be scrutinizing your behavior on the stand very closely and looking for signs of guilt or an indication that you are lying. While it may be tempting to try to tell your side of the story, if you appear nervous, uncomfortable, or evasive, your testimony may work against you, even if you are telling the truth.

The jury will be comparing you to the prosecution’s witnesses, many of whom will have testified at many other trials. Common witnesses for the prosecution include police officers, investigators, experts, and informants. These witnesses may have years of experience testifying in court and may have received training and extensive trial preparation. Consider the strength of your position compared to the prosecution’s witnesses. For example, if you are being charged with Driving Under the Influence (DUI), the strength of your testimony may not be very strong, as the jury may believe you were under the influence of alcohol and therefore not able to remember the events very clearly.

If you do not feel prepared for your word to go up against that of these seasoned witnesses, you may choose to consider not testifying at your criminal trial. The attorneys at the Law Office of Faraji A. Rosenthall have observed many juries and help our clients understand how the jury may perceive them.

Cross-Examination

One of the most significant reasons why most defendants choose not to testify is because of cross-examination. When a criminal defense attorney questions their own client at trial, they will typically try to allow their client to give an objective account of what happened, such as by giving you the opportunity to explain an alibi. However, the prosecutor will also have an opportunity to question the defendant, and they are not as likely to be objective or gentle. The prosecution will aggressively attack the truthfulness of a defendant’s statements and try to bring in as much damaging character evidence as possible and try to catch them in a lie. If you have past criminal convictions on your record, expect that these may be brought up at trial on cross-examination. The prosecutor’s goal is to paint a defendant in a negative light and convince the jury that they are not being truthful. This is almost certainly an uncomfortable, stressful, and generally painful process.

Will It Look Bad If a Defendant Does Not Testify?

For many defendants, their instinct is that if they do not say something in their own defense, it will appear as though they are hiding something, or that the jury will assume they are guilty because they are not talking. This is called an “adverse inference.”

However, this is where maintaining the privilege against self-incrimination becomes very important. Although in everyday life, silence may be construed as “hiding something,” a criminal trial is very different. If you choose not to testify, the prosecutor is not allowed to suggest to the jury that your silence is evidence of your guilt. In fact, upon the defendant’s request, the court may give the jury specific instructions not to draw adverse inferences from your silence. As much as possible, the law attempts to protect criminal defendants’ rights not to testify.

Talk to a Criminal Defense Lawyer About Whether to Testify

Although the decision of whether to testify is up to you as the defendant, you should consider speaking with an experienced defense attorney before making this important decision. An attorney may be able to provide you an objective perspective on your case and allow you to make an informed decision based on all the possible legal consequences of your testimony. At the Law Office of Faraji A. Rosenthall, our criminal defense attorneys have represented defendants across many types of criminal cases. We have seen countless trials and understand what it takes to put up an effective testimony. The decision to testify should not be taken lightly. Call us at 703-934-0101 for a free consultation with our experienced attorneys.