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Why doesn't everyone testify at their own trial?

If a defendant pleads "not guilty," it seems like it makes sense that the defendant would eventually take the stand and explain his or her innocence, right?

Wrong.

The Fifth Amendment guarantees that defendants always have a right to remain silent. If, for some reason, it isn't in a defendant's best interest to take the stand, juries are not supposed to infer anything from the defendant's decision to stay silent. They're even reminded of that in the instructions they're given when they leave to deliberate.

And there are a number of reasons that a criminal defense attorney may advise a perfectly innocent defendant to stay off the witness stand:

  • The defendant could be emotionally fragile and unlikely to handle the prosecution's cross examination without demonstrating emotions that would play poorly in the jury room.
  • The prosecution's case may be weak without a closer examination of the defendant's past and the defense may want to avoid allowing those facts to be known to the jury.
  • The defendant might have committed past crimes of a similar nature to the one that he or she is now on trial over. Staying off the stand can prevent the prosecution from bringing those up.
  • The defendant's manner is generally unlikable. Some people don't realize how they sound to others. When a defendant is "tone deaf" to the impressions he or she gives others, it's better to keep him or her off the stand.

It's also important to remember that "not guilty" isn't the same as "innocent." A defendant may actually be guilty of the crime -- but the prosecutor may have such a weak case that it can't be proven beyond a reasonable doubt in order to get a conviction.

In those situations, a defense attorney would be doing the client an injustice to put him or her on the stand. Once on the stand, the defendant can't lie -- which could make the prosecution's case.

If you're ever faced with the choice of testifying in your own criminal trial, you -- not your attorney -- have to decide whether or not to testify. However, smart defendants usually listen to their attorneys if they advice against it.

Source: FindLaw, "Criminal Procedure FAQ," accessed Dec. 29, 2017

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