After a decade as a criminal defense attorney, I can count on one hand
how often I have advised my client to testify in his/her jury trial. Of
course, people often ask "why wouldn't an innocent person take
the stand?" In my experience, there would have to be a very good
reason, above and beyond my client's innocence, for this to be a good
idea. In the vast majority of cases, the risk is too great and it is simply
unnecessary to win the case. Each case and every defendant is unique,
and there are pros and cons to consider. In the cases where my client
has testified, though few and far between, we have achieved acquittals.
Still, I am extremely reluctant to put my client in the position of being
cross-examined in their own defense.
In my experience, the jury is naturally predisposed to be suspicious of
anyone testifying in their own defense. They tend to discount the testimony
of the accused and give it far too much weight if an accused seems nervous,
inconsistent, or defensive (and, really – why wouldn't a defendant
be defensive?). When an accused testifies, it is human nature for a juror
to shift the burden of proof from the shoulders of the prosecution to
the defense. It is common for jurors to weigh the prosecution's case
versus the defendant's. Proof beyond a reasonable doubt and the presumption
of innocence are meant to keep the burden squarely on the prosecution
where it should be.
This theory about an accused testifying is shared by many in the criminal
defense community. This theory was recently put to the test in a felony
sexual assault trial I conducted several weeks ago. After four days of
prosecution witnesses, we were successful in obtaining a "not guilty"
verdict without putting my young client on the stand. Sure, there may
have been reason for him to testify: (1) he was innocent and had always
maintained he was innocent, (2) he did not have a criminal record that
would have been exposed, and (3) the jury may have appreciated hearing
from him as we were arguing that the sexual encounter was consensual.
However, the jurors in my recent case did not take long to acquit my client
and expressed to me that their "not guilty" verdict was the
result of focusing on the prosecutor's case, picking apart the accuser's
version, and critically looking at the police investigation. I believe
we would have muddied the waters by adding in the defendant's version
to the mix. In short, they were a great jury who followed the law and
the Constitution by holding the prosecution to their burden.
This tactic has served me well over dozens of jury trials I have conducted,
but there cannot be a hard and fast rule. In self-defense cases, sexual
assaults or child abuse cases involving children, I have encouraged a
client or two to testify in certain circumstances. I would caution any
attorney who puts their client on the stand to practice, practice, and
then practice some more. Even with preparation, putting an accused on
the stand is a risk I am weary to take and would always prefer to avoid.
To speak with an attorney about your criminal case, contact our experienced
Feldmann Nagel, LLC criminal defense team toll-free at 888-458-0991.