If you are currently the defendant in a criminal case, by far the most important decision you will have to make regarding your case is whether you wish to take your case to trial and allow a judge or jury to decide your fate. If, however, you have already decided to go to trial, there will be other important decisions that must be made regarding trial strategy. For example, you will need to decide whether or not to present a defense, and if you do decide to present a defense, what the theory of that defense will be. If you decide to present a defense, you will also have to decide whether or not to testify as part of that defense.
Criminal Trial Basics
Before getting to the question of the defendant testifying, or not, it is important to first understand a few basics about a criminal trial. In any criminal prosecution, the State has the burden of proving that the defendant is guilty of the charges against him/her beyond a reasonable doubt. This is the highest burden of proof in the American justice system. Although there is no universally accepted definition of the term “beyond a reasonable doubt,” it is typically described as 99 percent sure that the defendant is guilty. This is a heavy burden for the prosecutor; however, the goal is to prevent innocent people from being convicted of a crime they did not commit.
Because the prosecution has the burden of proof in a criminal trial, the defense is not required to present any evidence or testimony. The State always presents its case first in a criminal trial. When the State rests, the defense has the option to present a defense — or not. This is a strategic decision. If the State’s case is very weak and based on nothing but circumstantial evidence, the defense may decide to do nothing and allow the judge or jury to render a verdict based solely on the State’s presentation. If, however, the defense does decide to present evidence, the defendant must decide whether to testify or not.
To Testify, or Not to Testify
By far, one of the most important strategic decisions in a criminal trial for the defense is whether to put the defendant on the stand. Much thought often goes into this decision because there are significant pros and cons to each option.
On the one hand, failing to put a defendant on the stand almost always raises questions in the minds of jurors. Although the judge will instruct the jurors that they cannot deduce guilt from the defendant’s silence, the reality is that some jurors will wonder why the defendant did not take the stand. In addition, in some cases there are things that can only be explained by the defendant. An experienced criminal defense attorney can find creative ways to get many facts into evidence without the defendant’s testimony, but sometimes only the defendant can explain things such as why he/she said something during an interview or why he/she was in a specific place at a specific time.
On the other hand, putting the defendant on the stand exposes the defendant to cross-examination by the prosecuting attorney. Some witnesses cannot withstand cross-examination, even if they are completely innocent, because it can be grueling. Allowing the defendant to testify may also open the door to things the defense doesn’t want the jury to know, such as prior convictions the defendant has. Likewise, if the defendant made inconsistent statements in a prior interview, or makes an inconsistent statement on the stand, the defendant can appear evasive, unreliable, or deceptive – all things you don’t want the jury to think about the defendant.
The decision to allow the defendant to testify is one of the most important decisions made during the course of a criminal trial. If you are a defendant in a case that is going to trial, be sure to discuss this issue at length with your Tennessee criminal defense attorney before deciding whether to testify or not at your trial.
If you are currently facing criminal charges in the State of Tennessee, it is in your best interest to consult with an experienced criminal lawyer at Bennett, Michael & Hornsby as soon as possible to ensure that your rights are protected. Contact the team today by calling 615-898-1560 to schedule your appointment.