To Testify or Not to Testify

Refusing to testify in her murder trial worked out for Casey Anthony, but how do you know whether a criminal defendant should testify in his or her own defense or not?

One of the most difficult decisions for defense counsel in preparing a case is whether to have the defendant testify. Some attorneys believe that the defendant should testify whenever possible, because jurors may find it difficult to acquit otherwise (clearly not the case with Casey Anthony). Others believe that defense counsel should keep the defendant off the stand unless he or she has an exceptionally good story to tell and can perform well under cross-examination.

Regardless of counsel’s factual and philosophical preference, there are a number of legal and tactical considerations on whether to put the defendant on the stand, including:

  • Will the defendant be able to take the stand without committing perjury or confessing? Counsel whose client insists on taking the stand and committing perjury may have to withdraw from the case.
  • Will the defendant be a good witness? Before making the decision to call or not to call the defendant, counsel should observe the defendant’s responses while role playing direct and cross-examinations.
  • Will the trier of fact be a judge or a jury? Some defenses may be more acceptable to a judge and others to a jury.
  • Has the defendant been convicted of a felony? If the defendant testifies and has previously been convicted of a felony, it may be possible to impeach the defendant with it. Evid C §788.
  • Has the defendant committed a similar act of misconduct? Although acts of misconduct found similar (under Evid C §1101) to the criminal act that the defendant is accused of committing are admissible whether or not the defendant testifies, the defendant’s testimony may be such that it permits the prosecutor to introduce evidence of similar or dissimilar acts of misconduct as impeachment that otherwise would be inadmissible. See People v Ewoldt (1994) 7 C4th 380, 27 CR2d 646.
  • Will the defendant’s testimony correct deficiencies in the prosecutor’s case-in-chief? Although the defendant’s testimony should have no effect on appellate review of a motion for judgment of acquittal under Pen C §1118 (court trial) or §1118.1 (jury trial) (People v Belton (1979) 23 C3d 516, 519, 153 CR 195), it may convince the judge or jury beyond a reasonable doubt of the defendant’s guilt.
  • Will the judge deem the defendant’s testimony untruthful and thus impose a more severe sentence? See People v Redmond (1981) 29 C3d 904, 176 CR 780.
  • Has there been a strong prosecution case? If so, the defendant may have little to lose by taking the stand. If not, it may be best to “stand on the state of the evidence.”

Although these considerations for counsel are important, and defense counsel must advise the defendant of the merits and possible detriments of testifying, the ultimate decision whether to testify is firmly in the defendant’s hands. The defendant has a constitutional right to testify (People v Robles (1970) 2 C3d 205, 215, 85 CR 166) and to refrain from testifying (US Const amends V, XIV; Cal Const art I, §15).

Whatever decision the defendant makes, the court should advise the defendant on the record and out of the jury’s presence of the right to testify or not testify. This procedure avoids any future claim that the defendant was either forced to testify or denied the right to testify. The prosecution wants this on the record to avoid an appealable issue, and defense counsel wants it on the record to avoid a later claim of inadequate representation of counsel.

On making this major decision and preparing the defendant to testify, go to California Criminal Law Procedure and Practice, chap 30.  Also check out California Trial Objections, chap 47 on the defendant’s privilege not to be called and not to testify.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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