Should a Defendant Testify at Their California Criminal Trial?
A defendant has the right to testify on their own behalf at trial. However, just because someone can do something doesn’t mean they should. When a person takes the stand, they must answer the prosecutor’s questions. One bad answer could turn the jury against you or allow the prosecutor to introduce harmful evidence.
This article discusses the laws around the right to testify. It also addresses the pros and cons of testifying during a criminal trial. Finally, it explains how a Marin County criminal defense attorney can help you make the right decision.
Does a California Criminal Defendant Have to Testify?
Absolutely not. The Fifth Amendment to the U.S. Constitution says, “No person … shall be compelled in any criminal case to be a witness against himself.” The California Constitution has a similar ban on self-incrimination. As a result, a defendant cannot be forced to testify at a criminal trial.
The right against self-incrimination creates additional protections for defendants. For example, at trial, California jury instruction #355 tells juries that they cannot use the defendant’s silence as evidence of guilt.
Can a California Criminal Defendant Choose to Testify?
Yes. While a defendant cannot be forced to testify, a defendant who wants to testify must be allowed to do so. The United States Supreme Court has held that “a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.”
Who Makes the Decision About Whether the Defendant Testifies?
The defendant. While a lawyer can advise a client not to testify, the client makes the final decision. So, even if the defense lawyer recommends silence, the defendant can still choose to testify.
What Are the Benefits of Testifying in Your Own Defense?
While testifying at trial is risky, it can offer several benefits.
As stated earlier, judges tell juries not to hold the defendant’s silence against them. However, one study of jury behavior found that nearly 40% of jurors discussed the defendant’s silence in the jury room. The same study found that jurors were slightly more likely to reach a not guilty verdict when the defendant testified. These results suggest that when a person doesn’t testify, jurors use their imaginations to explain why. On the other hand, when a person takes the stand, there is less room for speculation.
Additionally, in some cases, a defendant’s testimony can be helpful. The defendant might be the only one who can tell their side of the story. This is especially true in cases with few or no witnesses, or in cases involving self-defense.
What Are the Risks of Testifying at a Criminal Trial?
Testifying at trial removes important protections granted to defendants. Without these guardrails, the chances of a guilty verdict can skyrocket.
Like any other witness, the defendant must answer the prosecutor’s questions. These questions, known as cross-examination, can be rough. Worse, giving the wrong answer can be disastrous. For example, even if a defendant has a long criminal history, generally, the rules of evidence strictly limit whether the jury can hear about it. However, testimony can open the door to prior convictions, especially when they relate to credibility. Also, if the defendant’s testimony in court is different from what they said earlier, such as in a police report, the prosecutor can introduce the out-of-court statement to attack the defendant’s credibility.
Also, in a criminal trial, it’s not just what you say, but how you look. If you fidget because you’re nervous, the jury might think you are nervous because you are lying.
In short, the biggest risk when a defendant testifies is unpredictability. It’s hard to know exactly what will happen at trial or how it will affect the jury. Silence eliminates uncertainty.
Can You Win a Criminal Case Without Testifying?
Absolutely! In a criminal trial, the defendant doesn’t have to present any evidence. Instead, the prosecution must prove guilt beyond a reasonable doubt.
Even though they don’t have to, most defense attorneys do present evidence. They usually focus on a particular theory or defense such as alibi or mistaken identity. Then, they will collect witnesses and evidence to support that theory. At the same time, they look for ways to attack the prosecution’s case and create reasonable doubt. All of this can be done without the defendant’s testimony.
Frequently Asked Questions About Defendants Testifying at Trial
- Can a defendant ask for an interpreter before testifying?
Yes. This right to an interpreter is guaranteed by the California Constitution.
- Can a prosecutor question a defendant privately before trial?
It depends on whether the defendant has hired an attorney. If the defendant has legal representation, the legal ethics rules generally say the prosecutor cannot talk to the defendant without the attorney’s permission, although there are a few exceptions.
- Can a defendant who plans to testify stay in the courtroom while other witnesses are on the stand?
Yes. You may have heard that witnesses cannot stay in the courtroom while other witnesses are testifying. This is generally true, but defendants have a constitutional and legal right to be present during the entire trial, including the testimony of other witnesses.
- Can a defendant testify if their criminal case is heard by a judge instead of a jury?
Yes. A trial can be decided by a jury or a judge. This is called a bench trial. The right to testify applies in both bench trials and jury trials.
What Should a Defendant Consider Before Deciding to Testify?
The decision to testify is one of the most important choices a defendant will make during a criminal trial. An experienced defense attorney can help you decide whether testifying is in your best interest. Together, you can discuss factors such as whether:
- The prosecution has a strong case
- Your testimony is the only way to get your side of the story in front of the jury
- Your criminal history might be used against you
- Your prior written or recorded statements conflict with what you plan to say at trial
- You handle the pressure of cross-examination
No matter your decision, your attorney can also ask the court to limit the use of damaging information.
If you’re facing criminal charges and want a strong defense, Brownstein Law Group can help. We’re aggressive with prosecutors but compassionate with our clients. To learn more about what our firm can do for you, schedule a consultation today by calling 415-795-9059 or using our online contact form.