Should I Testify?

While the decision to take the stand and testify in court may be something a number of people are grappling with, for purposes of this post, I will focus on criminal defendants. I will note that if you are a victim of a crime, it is incumbent upon you to state the truth in court so that fewer people will be victimized by your assailant.

***If you are a victim of a crime and are afraid of repercussions, contact the DA's office handling the case and express your concern. They will point you to resources that can help you. If they don't or you feel unsatisfied after talking with them, please contact me through my website. I will help you.***

As a criminal defendant, you always reserve the right to testify. You may feel pressure from your attorney to testify or not testify, but ultimately the decision is yours. As a prefatory note, you generally can trust your lawyer to know what the best decision will be. Your lawyer knows the case, the judges, the local court system, much better than I do. However, if you have a gut feeling about what you should do, and you want to feel better about the decision you are making, here are some things to consider.

1. Criminal Record

As a general rule, if you testify in court, the prosecutor will be able to ask you about previous convictions you've received. Sometimes these could be minor: simple possession of marijuana, criminal mischief, etc. But if you were previously convicted of the same crime that you're currently on trial for, it's going to color the jury's perspective of you. Even if you've only been convicted of misdemeanors, that could still create apprehension in the jury. Remember, the defense does not need to prove innocence. The prosecutor is the one who needs to bring in enough evidence to prove guilt beyond a reasonable doubt. If you have a criminal record, taking the stand could give the prosecutor more ammunition to make his case, without contributing anything to your own.

You may think that without any convictions, you should be free to take the stand without fear of any past crimes coming up. But if you've ever even been arrested, there are ways that the prosecutor can get that information into court. Take for example Walder v. United States, 347 US 62 (1954). In Walder, the defendant had a previous arrest for a narcotics charge that was dismissed due to the narcotics being found as the result of an illegal search and seizure of the defendant's home. The narcotics were suppressed from evidence. Two years later, the defendant was arrested for a separate narcotics charge. During the trial, the defendant chose to take the stand and lie about his previous drug use, saying that he had never used or possessed drugs ever in his life. Ordinarily, the suppressed evidence from the previous arrest would be inadmissible in court, but it became admissible in order to prove that the defendant was lying. He was subsequently found guilty.

The desire to clear your name in open court may sound appealing, especially if you're innocent of the charges, but having a criminal record will tarnish your testimony and give the prosecutor a stronger argument against you.

If you are going to testify, do not lie under oath. If the Walder case has taught us anything, it's that the prosecutor will find a way to prove the truth.

2. Bad Habits

The Federal Rules of Evidence allow for testimony regarding anything that is material to the case, that is, anything that makes a fact more or less likely. But how far does it go?

Can they ask about your religion? Your marital status? Your personal hygiene?

Well it depends.

Do any of those things provide motivation for your committing the crime?

Do any of those things give an alternative explanation for what you were doing at the time the crime was committed?

Are any of those things interrelated to the crime itself?

If you answered yes to any of these questions, then yes, this information can be admitted.

There is some good news, however. Rule 403 requires that even relevant evidence can be inadmissible if the probative value is  outweighed by the prejudicial effect. It's a simple balancing test: Value of the Evidence versus Prejudicial Effect. For example, a person's affair might not be admissible to show that he robbed a bank located down the road from his paramour's home. Conversely, if the person is accused of killing his spouse, then the affair most likely would come into evidence.

3. Military/Work Experience/Education

Similar to how bad habits can enter evidence under certain circumstances, good character traits can work their way into evidence as well. As long as you left the military on good terms, being able to call yourself a military vet is considered a positive. However, bear in mind that the prosecutor can frame the narrative to make it appear that the military has made you violent. If you're charged with a violent crime, it is especially important to talk this point over with your attorney.

Work experience and higher education can often be brought into evidence. Consider how your work and educational experiences will look to a jury. Are you a high-powered CEO? Are you a janitor? Are you unemployed? None of this is to say that any profession is better or worse than another, but how does it look to a jury? Those are the people you have to impress.

4. Speech Impediment/Uneducated/Prejudice

Unfortunately, we live in a society where even the innocent are unjustly judged and made to feel as second-class citizens. I have seen completely innocent people be targeted by the police for no reason other than that they fit a certain stereotype. Maybe that's you. Maybe you live in a high crime area because that's all you can afford. So you're constantly in the wrong place at the wrong time with the wrong people. Maybe you can't afford decent clothing or dental care. All of these things, when taken together, can cause police officers to assume you're a criminal, a drug addict, or a thief.

The hard truth is that a jury might take one look at you and think the same thing that the police officers did. Maybe not, but there's no way of knowing for sure what 12 strangers will think. Alternatively, you could go with a bench trial where your chances of winning will depend entirely on the judge assigned to the case. Either way, people's biases are a factor to consider when deciding whether or not to testify.

 

                      5. Weight of the Evidence

After considering all of the above factors, you have to weigh the risk of testifying against the other evidence against you. One type of crime where evidence is usually waning is sexual assault. While there may be evidence of sexual contact, proving non-consent is quite difficult without evidence of physical harm to the victim. In that case, the victim's word is the only evidence of there having been a crime committed. But is the victim credible in her testimony? If so, then there will most likely be a finding of guilt.

If you also choose to give credible testimony, the evidence as it pertains to consent will be 50/50. That is not enough to overcome reasonable doubt. Without any reason to believe that either person is lying, the jury must make a finding of not guilty.

To conclude, deciding on whether to testify can determine the outcome of your case. Usually the best thing for the case is to not testify as it can open the door for bad information to enter evidence without adding much good information. However, if you have never been arrested before and have lived an accomplished life thus far, you may take the stand to declare your innocence. Nevertheless, always respect the opinion of your attorney who knows the specifics of the judges and court systems in your local area. I hope this post has offered you some insight and has helped you in your decision.