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SHOULD A CRIMINAL DEFENDANT TESTIFY?

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.

Categories: Criminal Defense

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