Should I Testify in My Criminal Trial?

 Posted on February 25, 2021 in Criminal Defense

When you have been charged with a crime and your case is set for trial, you and your attorney will need to decide if you are going to testify on your own behalf. This decision will need to take into account a variety of ethical and strategic considerations, including the nature and severity of the crimes for which you have been charged. Deciding to testify in a murder trial, for example, is much different from deciding to testify in a trial for theft or burglary. As you and your lawyer approach this decision, it is critical to understand how the choice can affect your case.

Constitutional Rights and Protections for Criminal Defendants

As a criminal defendant, you have the right to due process of law as promised by the Fourteenth Amendment to the U.S. Constitution. You also have the right to face your accusers under the Sixth Amendment. Taken together, these rights have been interpreted in case law as giving you the right to testify in any criminal proceeding against you. Nobody involved in the case can keep you from testifying if you wish to do so, including the judge, the prosecutor, or even your own attorney.

It is also your right not to testify during your criminal trial. This right does not exist in other types of proceedings. For example, you can be required to testify in a civil trial, and failing to comply could lead to sanctions or a finding of contempt. However, the Fifth Amendment guarantees that you cannot be forced to incriminate yourself, which means that you cannot be compelled to testify when you are the defendant in a criminal case.

Your right to be free from self-incrimination also includes an additional level of protection. The finder-of-fact in your case—whether it is the judge or jury—is not permitted to make assumptions based on your lack of testimony. Your refusal to testify cannot be taken to mean that you must be guilty. If such assumptions were permitted, your rights would be severely compromised.

Strategic Considerations

While you have the right to testify or not to testify, you are not afforded the right to lie in your testimony. If your attorney has reason to believe that you will commit perjury by giving false information or by intentionally misleading the court, your attorney is ethically obligated to refuse to call you as a witness.

There are also other reasons that testifying might not be the best choice. For example, your demeanor or personality might not make you a particularly good witness. This might sound harsh, but the reality is that some people simply do not come across as credible on the witness stand. Your testimony, even if given with complete honesty, might come off as not believable, which could give the jury a poor impression of you. Your attorney might also develop a feeling that the jury is somehow biased in a crucial way. Putting you on the stand might play into such biases and end up being detrimental to your case.

On the other hand, there might be a number of reasons why you should testify on your behalf. Jurors tend to like hearing both sides of a case, even if it is simply out of curiosity. While a jury cannot draw conclusions based on whether you provided testimony or not, it is hard not to wonder why someone would not testify and if that person was hiding something. If you can present yourself well, you could potentially be the best witness for yourself. With this in mind, it is crucial for you and your attorney to carefully consider all of the possibilities before deciding if you should testify.

Contact a Chicago Criminal Defense Lawyer

If you are facing criminal charges at either the state or federal level, it is important to enlist the help of an experienced Chicago criminal defense attorney. Your attorney will work hard to ensure that your rights and best interests are fully protected and help you determine the best approach to your trial. Call 312-629-0669 and schedule a free consultation at the Law Offices of Hal M. Garfinkel today.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1966&ChapterID=54

https://constitutioncenter.org/interactive-constitution/amendment/amendment-v