Criminal Defense – Why not testify in your own defense?
In every criminal trial, the defendant is faced with a critical strategic decision: to testify or not to testify. Those outside the criminal justice system tend to view this decision in simple terms, believing that the innocent will take the stand and tell their side of the story, while those with something to hide will not. Experienced criminal lawyers know that the decision is much more complex and rarely has anything to do with guilt or innocence.
Testifying is fraught with danger for any defendant. Guilty or innocent, if the defendant takes the stand, the case will likely hinge on his performance as a witness. With so much at stake, the pressure on the defender is enormous. One wrong move and you could lose your case. During cross-examination, a skilled prosecutor will try to confuse him and twist his words to make it appear as if he is lying. If he is a bad public speaker or gets nervous and says the wrong thing, he may look guilty even if he isn’t. If the tone or demeanor puts off the jury, or they simply don’t like you for inexplicable reasons, the defense may never recover.
Aside from the impression the defendant gives during his testimony, the mere act of testifying can have the unintended effect of reducing the burden of proof. In a criminal case, a conviction requires proof beyond a reasonable doubt, the highest standard of proof in our legal system. When the only evidence presented comes from the prosecutor, the jury focuses on whether the prosecutor has met that high burden of proof. However, once the defendant testifies, jurors tend to focus solely on who they believe, the defendant or the alleged victim. Rather than weigh the prosecutor’s case against the extraordinarily high standard of proof beyond a reasonable doubt, jurors tend to weigh the defendant’s story against the prosecutor’s or victim’s story. This effectively reduces the standard of proof to something approaching a preponderance standard (more likely than not) and drastically reduces the defendant’s chances of winning the case.
Finally, in some cases, there is truth to the widely held belief that a defendant who chooses not to testify is hiding something. Court rules normally limit the evidence admitted at trial to that which is directly related to the alleged crime. Evidence of unindicted misconduct and prior criminal convictions is generally excluded for fear that jurors exposed to such evidence will convict the defendant just because they believe he is a bad person rather than because they have been presented with evidence that he actually committed the crime charged. . However, if a defendant testifies, he may open the door for the prosecution’s use of such evidence. Knowing that evidence of prior wrongdoing may prejudice the jury against him, the defendant may choose not to testify to avoid any risk of exposing the jury to such damaging evidence.
Because of all the risks involved when a defendant testifies, many criminal defense lawyers advise their clients, regardless of perceived guilt or innocence, not to testify unless absolutely necessary. This advice frustrates the countless defendants who desperately want to proclaim their innocence to the jury. However, most criminal defense attorneys have learned the hard way that it is generally much safer to attack the prosecutor’s case than to present one of your own.