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Whether to testify at your criminal trial is one of the most important decisions you will make. Some lawyers have fixed rules such as “I always have my clients testify” others say “I never put my client on the stand.” The best lawyers take a case-by-case approach to determine whether it is in the client’s best interests to testify.
Some things you should consider when deciding whether to testify include:
1) Will the jury be left wondering what your story is?
In some cases, by the time we make it to trial, our clients have said everything there is to say. In those cases, we need to ask ourselves, “what do we gain by testifying?” If the client has already explained his version and the government is going to use parts of it, can we admit the balance through the police officer or FBI agent using the Rule of Completeness? If we can tell your story through the government’s witness, maybe we can avoid putting you through the stress of testifying.
Testifying isn’t just as simple as sitting down and talking. It’s a high stress exercise where the person asking the questions has literally spent years of his life practicing the skill of questioning witnesses. If we’re going to testify, we need to understand what we have to gain. If there’s another way to tell your story, maybe you should explore that avenue.
2) What are the risks of testifying or not testifying?
There are real risks in testifying. Some times these relate to being questioned about areas that the government didn’t fully explore during their investigation, but could on cross examination. Other times the risks relate to appearance and demeanor.
Have you disclosed the true danger points to your lawyer? Have you told him the things that make you sick to your stomach to think about? You should expect that the other side will ask all of the questions you don’t want to have asked. You should discuss all of these areas with your lawyer before making a decision to testify.
What do other people think of how your practice testimony has gone? If you haven’t done a dry run of your testimony you should. Your opinion about how you’ll do isn’t very important. You need an opinion from someone who isn’t in the middle of the case and who will tell you the truth. Some lawyers employ focus groups on serious cases to help with this.
3) Can someone else help humanize you with the jury?
If you’re on the fence about testifying, it may be useful to find a “proxy” to help tell your story and humanize you. For example, this could be a friend or family member who can help tell your story and help the jury to see you’re a good person. Some times these witnesses come in the form of character witnesses or less important fact witnesses. The goal is simply to help the jury see that you’re not the bad guy the government is making you out to be. If you can do this through another witness, you may be able to avoid taking the stand yourself.
4) Are you prepared to testify?
How much have you prepared? Trial is not the time to think about testifying for the first time. If you have weighed the risks, discussed how to testify with your lawyer, practiced testifying, and maybe employed a focus group, you probably shouldn’t be taking the stand.
On practicing testimony, I don’t mean trying to get your story straight. I’m talking about how the process works and how to handle cross examination. Testimony isn’t like everyday conversation. It’s a structured (and strange) process by which the questioning attorney makes a bunch of statements that you either agree or disagree with. There are some rules for surviving cross examination. If you haven’t discussed these with your lawyer before trial, you may want to pass on testifying.
The bottom line is that the decision on whether to testify is and important one that you should make in consultation with your criminal lawyer Greenville, MI relies on. You should try, whenever possible, to make preliminarily make this call before you even walk into the courtroom for your trial.
Thanks to Blanchard Law for their insight into criminal defense and testifying at your criminal trial.