To Testify or Not? That is the Question

In a criminal case every defendant has a right not to testify. Deciding whether to exercise the defendants right to testify is the sole legal responsibility of the defendant (although seeking professional legal counsel is advisable). Regardless of whether or not criminal defendants choose to take the stand, it is important to know one’s rights. The Fifth Amendment of the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself or herself. In other words, a defendant is under no legal obligation to testify at his or her trial, by invoking his amendment right against self-incrimination.

How To Properly Prepare the Jury For Defendant Testimony

If the defendant exercises his or her right not to take the stand, the trial judge must instruct the jury not to hold this decision against the defendant. Further, the judge must advise the jury that it would be improper to speculate as to the reason for the defendants waiver and expressly instruct the jury not to assume the defendant is guilty because he or she chose not to testify. If a defendant chooses not to testify at trial, the judge conducts a “Boyd” inquiry. Essentially, while on record, the judge asks the non-testifying defendant whether or not he/she knows that he/she has both the right to testify and the right not to. The judge must ensure that the defendant has voluntarily, and intelligently, waived the right to testify.

What About The Fifth Amendment?

In addition to the defendants constitutional right not to testify at trial, the Fifth Amendment protects any self-incriminating statements that the defendant makes prior to trial from being admissible in court. Such statements can only be admitted at trial if certain constitutional and statutory requirements have been met. For a confession or incriminating statement to be admissible at trial the prosecution must prove that the statement was (i) given freely and voluntarily, (ii) that the defendant was given proper warnings regarding his or her rights prior to the statement, and (iii) that the defendant properly waived his or her right to remain silent.
A finding that a self-incriminating statement was coerced or that the defendant’s will was overborne will result in the statement being excluded at trial for lack of voluntariness. For example, if law enforcement subjects a defendant to 36 hours of continuous questioning without sleep, his/her confession will not be considered free and voluntary because the circumstances under which it was given were inherently coercive. Moreover, police must advise people of their Miranda rights before interrogating them otherwise any evidence gathered during the interrogation will be inadmissible at trial. Finally, the defendant can expressly waive his/her right to remain silent by signing a statement or the defendant may verbally state that they are waiving their right. An implied waiver of this right occurs when the defendant begins talking and continues until he/she expressly invokes his/her Miranda rights.

The Potential Benefits of Testifying

A defendant that does choose to take the witness stand may benefit, or suffer, from testifying at their trial. On the one hand, the defendant’s testimony can provide perspective and clarity to a story that might otherwise be very one-sided or missing important information. On the other hand, choosing to testify means that the defendant will be subject to cross examination by the prosecution. Cross-examination is nerve-racking because prosecutors are trained to draw out information even from well-prepared defendants. Additionally, if the defendant has any prior convictions the prosecutor may use these to undermine the defendant’s credibility as a source of reliable testimony. The decision whether or not to testify in one’s own trial is an important one which should always be made under the guidance of a licensed attorney. For more information from a Washington DC criminal defense attorney please contact our office.