Why Defendants Choose to Testify
“It is one of the most consequential decisions a defendant can make in a criminal trial,” Robert Perry, an attorney with Rosenberg, Perry & Associates, tells A&E Crime + Investigation. “The defendant has an absolute constitutional right to testify, but just as importantly, they also have an absolute right not to testify. Once a defendant takes the stand, the jury is no longer just hearing the state’s version of events or the defense theory through cross-examination and argument. They are hearing directly from the accused person, and that can be extremely powerful.”
A defendant’s testimony can be just as impactful for them as it is for the jury. Marisa Darden of Benesch, Friedlander, Coplan & Aronoff explains to A&E Crime + Investigation that a defendant may simply want to be heard directly, rather than just having their attorney speak for them. Particularly in today’s society, in which people tend to be more performative and worry more about their public persona, “they feel like the only way they can possibly get out of this is to explain the justification for what they did, why they did it or why they didn't do it,” she says.
What Defendants Risk by Testifying
However, all the attorneys A&E Crime + Investigation spoke to agreed that defendants are typically advised not to take the stand due to the immense legal risk that entails. Most notably, they subject themselves to cross-examination by prosecutors. A defendant’s testimony can also damage their credibility with a jury, or they can make statements that open the door to information that helps the case against them.
“As a general rule, defendants should avoid testifying when the defense can win on burden-of-proof alone and the defendant presents major credibility or impeachment vulnerabilities,” Bobby Taghavi, managing partner at Sweet James, tells A&E Crime + Investigation. “It hurts when the defendant argues, over-explains, looks evasive or gets caught in contradictions. In those cases, testimony becomes the prosecution’s best evidence.”
Darden pointed to one of her cases as a federal prosecutor as an example of someone putting themselves in further jeopardy by testifying. On trial for drug trafficking, a defendant who was an aspiring rapper had images of himself with a firearm, money and drugs on his album cover. She used that album cover and his rap career to impeach his credibility. “I pulled up his album cover and was circling like, that's you with a gun,” she recalls. “That's you with drugs, that's you with money, that's you living the life. And you just told this jury you think that it's important to be authentic, so this is who you are.”
How Defendants Prepare to Testify
If a defendant knows the risks and still wants to testify, defense attorneys must take far greater care in preparing them to take the stand than an average witness because of that risk of self-incrimination. This includes preparing mock direct examinations and cross-examinations to prepare them for what they will experience in the courtroom, teaching them how to answer only what is specifically asked and being aware of the image they will present to a jury. According to Darden, it can take days or sometimes weeks for a defendant to be ready to testify.
“The biggest part of preparation is not teaching somebody what to say,” Perry adds. “It is teaching them how to testify truthfully, clearly and with discipline.”
Taghavi agrees, pointing out that defendants face a much higher amount of pressure when they’re sitting in the witness box. “Jurors scrutinize the defendant’s tone, attitude and credibility far more,” he says. “One bad exchange can overshadow the whole trial.”
He adds that defendants who help their cases are those who are credible, disciplined and whose testimony aligns with the objective evidence.
Does a Defendant Ever Have to Testify?
Legally, there are no circumstances in which a defendant is required to take the stand. They have the right not to testify and are assuming incredible risk when they choose to do so. Perry and Darden note that jurors in criminal trials are specifically instructed not to draw any negative conclusion from a defendant deciding not to testify.
Yet all three attorneys A&E Crime + Investigation interviewed say jurors may still wonder why they haven’t heard from the defendant. They may question if they’re missing something by not hearing the defendant’s side of the story. Darden points to domestic and family violence cases as an example of this concern. “In domestic violence cases and intimate partner violence cases, quite often the jury says, I get it, but if they didn't do it, why didn't they come and state their [piece]?” she said.
Taghavi says it’s therefore up to the defense attorney to also prepare for a defendant’s lack of testimony by giving jurors a framework to return to. The defense will want to make a strong legal argument so that the jury doesn’t hold a lack of testimony against their client. “Silence can be legally protected but psychologically meaningful,” he says, “so it has to be managed strategically.”
Ultimately, it will always be a defendant’s decision to testify or not in their own defense, based on the circumstances of each specific case. When a defendant takes the stand, they are essentially taking their case—and their future—into their own hands. It’s a choice that requires an incredible amount of work from both the defendant and their attorney, and even if all that work is done perfectly, it may still have serious consequences. That’s why it remains very uncommon for defendants to testify, and why defense attorneys continue to recommend against it.
“In my experience, it usually hurts the defendant,” Perry says. “One of the biggest advantages a defendant enjoys is the presumption of innocence. Once a defendant testifies, it forces the attorney to play defense and offense.”
