In every criminal trial, the defendant faces a critical strategic decision: to testify or not to testify. Those outside the criminal justice system tend to view this decision in simple terms, believing that the innocent will take the stand and tell their side of the story while those with something to hide will not. Experienced criminal lawyers know that the decision is far more complex and rarely has anything to do with guilt or innocence.
Testifying is fraught with peril for any defendant. Guilty or innocent, if the defendant takes the stand, the case will likely turn on his performance as a witness. With so much at stake, the pressure on the defendant is enormous. One false step and he could lose his case. During cross-examination, a skilled prosecutor will attempt to confuse him and twist his words to make it appear that he is lying. If he’s a bad public speaker or gets nervous and says the wrong thing, he may appear guilty even though he’s not. If the jury is turned off by his tone or demeanor, or simply doesn’t like him for inexplicable reasons, the defense may never recover.
Apart from the impression the defendant makes during his testimony, the mere act of testifying may have the unintended effect of lowering the burden of proof. In a criminal case, a conviction requires proof beyond a reasonable doubt, the highest standard of proof in our legal system. When the only evidence presented comes from the prosecutor, the jury focuses on whether the prosecutor has met that high burden of proof. Once the defendant testifies, however, jurors tend to focus solely on who they believe, the defendant or the alleged victim. Rather than weighing the prosecutor’s case against the extraordinarily high standard of proof beyond a reasonable doubt, the jurors tend to weigh the defendant’s story against the prosecutor’s or the victim’s story. This effectively lowers the standard of proof to something approaching a preponderance standard (more likely than not) and dramatically reduces the chances the defendant will win the case.
Finally, in some cases, there is truth to the widely held belief that a defendant who chooses not to testify is hiding something. Court rules normally limit the evidence admitted at trial to that which bears directly on the alleged crime. Evidence of uncharged misconduct and prior criminal convictions is usually excluded for fear that jurors who are exposed to such evidence will convict the defendant just because they believe him to be a bad person rather than because they have been presented proof that he actually committed the charged crime. If a defendant testifies, however, he may open the door for the use of such evidence by the prosecution. Knowing that evidence of prior bad acts may prejudice the jury against him, the defendant may elect not to testify so as to avoid any risk of exposing the jury to such damaging evidence.
Because of all the risks involved when a defendant testifies, many criminal defense attorneys advise their clients, regardless of perceived guilt or innocence, not to testify unless absolutely necessary. This advice frustrates the countless defendants who desperately want to proclaim their innocence to the jury. Most criminal defense attorneys have learned the hard way, however, that it is usually much safer to attack the prosecutor’s case than to put on one of your own.
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