5 Reasons Defendants Choose Not to Testify
In a criminal case, a defendant who is accused of a crime does not have to take the witness stand in their own defense. This constitutional right is a cornerstone of our justice system.
Criminal defense attorneys have plenty of strategic and legal reasons for advising their clients not to testify on their own behalf. Here are five reasons defendants typically choose to go this route:
The Burden of Proof Rests With Prosecutors
The prosecution has to prove the defendant’s guilt beyond a reasonable doubt. If they fail to do this, a defendant doesn't need to prove anything, and they should be found not guilty.
Even in cases of alleged self-defense, a defendant may choose to not present any evidence of self-defense. Yet the jury may rightly infer self-defense from the evidence presented by the prosecution, including the prosecution’s witnesses and any physical evidence.
Right Against Self-Incrimination
Aside from the burden of evidence, defendants are entitled not to testify in their own defense to preserve their Fifth Amendment right against self-incrimination. This right is found in the U.S. Constitution and belongs to all criminal defendants no matter whether it is a jury trial or a bench trial in front of a judge alone and whether it is a felony or misdemeanor criminal charge.
But when a defendant voluntarily takes the stand, he waives the right to "plead the Fifth," and he will be compelled to answer the prosecution's questions as well as his own attorney's during the criminal trial.
Cross-Examination Is Brutal
Once the defendant takes the stand, his criminal defense lawyer will ask questions that allow him to explain his side of the story in a way that is most favorable to his case.
However, when the prosecution gets a crack at the defendant during cross-examination, even the most sympathetic and credible defendant can become a seething cauldron of rage or an unbelievable mess. Depending on the circumstances of the case, if the defendant testifies, they could be asked about any prior criminal record and prior bad acts which can potentially discredit them in front of the jury or judge.
Other Witnesses Can Testify
Because of the risk of a defendant being discredited or vilified on the stand, it is often much more prudent to let other witnesses do the heavy lifting in a defendant's case.
Defense witnesses can also testify about a defendant's actions and even their perception of his state of mind without violating the rule against hearsay evidence.
Defendant Doesn't Want To
This may not necessarily have to do with defense strategy or credibility; a defendant may simply be emotionally uncomfortable with testifying.
Attorneys may attempt to convince their clients to testify, but lawyers are ethically bound to respect their clients' wishes with respect to their defense and should respect the defendant’s right not to testify. Ultimately, defendants who choose not to take the stand base their decisions on mix of emotional, legal, and strategic considerations.
If you have a question regarding your criminal case and whether you should ultimately testify on your own behalf make sure to get legal advice from a local criminal defense attorney first.
Related Resources:
- How Long Can You Be Held Without Charges? (FindLaw’s Law and Daily Life)
- Can You Go to Jail for Refusing to Testify? (FindLaw’s Law and Daily Life)
- May the Court Force Me to Testify? (FindLaw’s Learn About the Law)
