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6 DECIDING FACTORS TO CONSIDER WHETHER TO TESTIFY AT YOUR CRIMINAL TRIAL

No person “shall be compelled in any criminal case to be a witness against himself.” This is the Fifth Amendment privilege against self-incrimination. It means that you cannot be forced to take the witness stand during your criminal trial; instead, you may choose to remain silent. Although conventional wisdom suggests that remaining silent is the wise choice in most cases, there are several factors you should consider in deciding whether to testify.

1. Your testimony may bolster your defense.

If you are claiming self-defense, or entrapment, or that you acted in good faith, you may want to testify. These and similar defenses are more likely to carry the day when the defendant testifies. This is especially true if you have a credible explanation for your actions, and you have no prior criminal record.

2. Human nature: Jurors will want to hear from you.

As a general rule, jurors want the accused to take the stand and defend himself. This cuts both ways, however, as jurors tend to view the defendant’s testimony with skepticism, knowing that his liberty is at stake.

3. You are innocent until proven guilty beyond a reasonable doubt.

In every criminal trial, the defendant is presumed innocent, until proven guilty. To put it another way: You do not have to prove your innocence; the prosecution has to prove your guilt, beyond a reasonable doubt. Accordingly, if the prosecution has failed to meet its burden of proof, or your attorney has created a reasonable doubt through his cross-examination of the prosecution’s witnesses, then you should probably remain silent.