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Reasons Not To Testify At Trial

Posted By Criminal Law Standard || 10-Nov-2010

    The Fifth Amendment of the U.S. Constitution provides the right against self-incrimination.  In a criminal trial, this means the accused cannot be forced to testify.  The decision as to whether or not a criminal defendant will testify at trial is always an important one.  The person charged with a crime makes the final decision related to this issue.  

    Typically, during jury selection the judge and the criminal defense attorney will instruct potential jurors that a defendant's failure to testify at trial is not evidence of guilt, and that the jury cannot use a defendant's failure to testify as a basis to find the defendant guilty.  Despite these instructions, however, human nature sometimes makes it difficult for jurors to ignore the fact that a defendant did not testify in his own defense.  As such, there are risks associated with a defendant not testifying at trial.  In particular, some jurors mistakenly believe that only a guilty person would choose not to testify at trial. 

    Nevertheless, in certain situations it is unwise for the defendant to testify at trial.  For example, if a defendant has been previously convicted of a felony or crime of moral turpitude (a crime that tends to show bad character; e.g., theft and prostitution), on cross examination the prosecution can ask the defendant questions to establish the prior conviction. Obviously, once a jury knows that the defendant has been convicted of another crime they are more likely to convict the defendant in the current case. 

    Another situation where a defendant may decide not to testify is where the defendant will not make a good witness at trial.  For example, a defendant may testify to facts that, though true, will be difficult for the jury to believe.  Unfortunately, the truth does not always ring true.  Another example is where a defendant is easily angered or otherwise easily shows a temper.  Whenever a witness becomes angry they tend to impair their credibility with the jury. 

    A defendant may choose not testify in situations where the truth would tend to convict them (i.e. they committed the crime they are accused of).  In a criminal case, the prosecution has the burden of proof to prove the allegations in the complaint or petition beyond a reasonable doubt.  The defendant does not have to prove anything.  As such, in instances where the defendant's testimony is incriminating it may make sense for the defendant not to testify.

    Finally, in some cases a defendant has made inconsistent statements related to key facts in a case.  This can occur in situations where the defendant has told his story to several family members, co-workers, and/or friends.  If the defendant testifies, the prosecution may question the defendant about prior statements inconsistent with the defendant's testimony, and if the defendant denies having made the prior statements, the prosecution can introduce evidence to show that the defendant made prior inconsistent statements.  Jurors tend not to believe witnesses who can't keep their story straight. 

    If you have been charged with a crime it is critical that you hire an attorney who can help you decide whether to testify at trial.  Dallas criminal defense attorney Tom D'amore has tried several hundred jury trials during his 22 year career, and has prepared several thousand witnesses to give trial testimony.  Contact the D'Amore Law Firm to make an appointment for a free case review with Dallas criminal attorney Tom D'Amore.

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