Should I Testify in My Own Defense?
If you’re thinking of going to trial on your case, one question gets asked over and over again – Should I testify in my own defense? The short answer here is generally NO.
Why? Because you don’t have to and the risk is great.
This post relates to your Fifth Amendment right against self incrimination. The State can never force you to testify against yourself during your trial. One of the biggest decisions you can make during the course of your criminal case are:
- Whether or not I should take a plea bargain?
- Whether I want a Trial by Judge or Jury Trial?
- Whether or not you want to testify during your trial?
The decision to testify on your own behalf shouldn’t be made lightly. You should consider a long list of factors. First, talk to your lawyer about your case. Second, discuss the option to testify with your family. Generally, the best advice is DO NOT testify during your trial.
Why I shouldn’t testify during my trial.
The answer to this one may be relatively straightforward. Prosecutors are experienced and very skilled at questioning witnesses. They can back you into corners with questions and put heavy pressure on you. Most witnesses cave under this pressure. This process can feel like you’re in front of a firing squad.
Second, prosecutors can use your criminal record against you. Most clients in my experience have prior criminal charges. A prosecutor may be able to talk about some of those prior charges while you’re in front of the jury. The same jury that is deciding your fate. This is especially true if you have conviction for theft charges such as shoplifting or common theft on your record. These charges affect your character for honesty.
Third, once you start testifying, you can’t pick and choose what questions you answer. You can’t start testifying and then plead the Fifth while on the witness stand. It is literally open season and you’re the target. In addition, you may feel nervous, get angry, or lose your train of thought when speaking in front of others. I can say with 100% certainty that even I would be hesitant to testify on my own behalf.
Lastly, people who testify on their own behalf usually don’t help their case. I’ve spent hours and hours in Court, sitting through trials, and talking with lawyers with decades of criminal defense experience. From what I’ve personally seen and over the course of their 10, 20, 30 years of experience, the vast majority of people hurt their case by choosing to testify.
You have a constitutional right whether or not you want to testify during your criminal trial. That decision is ultimately yours. Don’t make it lightly. Talk about your own personal strengths and weaknesses with your lawyer. Consider your education, your comfort speaking in front of others, and your criminal record. Most people who choose to testify hurt themselves during trial. If you’re at the point of needing to make this decision, consider all your options. Don’t put yourself in front of the firing squad when you don’t have to. If you and your lawyer have strong disagreements about your decisions, you may choose to fire them an find a new lawyer. I’m always happy to speak with new clients. Fill out the form to the right or give my office a call.