5 Reasons Not to Testify in Your Own Defense

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577


The U.S. Constitution and Texas Code of Criminal Procedure 38.08 guarantee a person on trial the right to testify in their own defense.  38.08 reads, “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

The vast majority of experienced criminal defense lawyers will advise their clients against testifying in the vast majority of cases.  There are many reasons why defense lawyers think this way and here are just some:

1.  It is virtually impossible to convince someone you are innocent of a crime.

We assume that people listening to us are open minded and can be persuaded with our honest nature and straight-forward approach — but like most assumptions, it’s wrong much of the time.  Our founding father’s knew a lot about human nature and our natural rush to judge people.  They knew that people rarely believe someone that claims they are innocent, so why even bother with the charade?  It only endangers the citizens more to have a star chamber system of government.  Putting the burden of proof on the government and forcing them to prove their case is simply the fairest way to have a trial.

2.  There is no “right way” to behave when you’re testifying.

Obviously you should be yourself when if you are testifying, but you have to consider the audience.  In act 3, scene 2 of Hamlet, Queen Gertrude says about someone professing their innocence, “…The lady doth protest too much, methinks.”  This just means that if you assert your innocence very aggressively — people think you’re lying.  And here’s more bad news… if your voice shakes when you testify — people also could think you’re lying.  People an also think you’re lying if you make too much eye contact, make too little eye contact, look at the floor, look at the judge, look at someone in the audience, look at your lawyer, look at the alleged victim (if any) and on and on and on.  The bottom line is that professing your innocence can work — but it’s usually a lose-lose situation.  Psychologists teach us that not even the best law enforcement personnel around can detect lies by looking at someone’s facial expressions.  Jurors are even worse!  What one person was raised to believe is a truthful expression is a lie to someone else — and vice versa.

3.  Prosecutors have a built-in cross examination advantage.

They can accuse you of lying on the witness stand to beat the rap!  Not only that, but prosecutors know what they’re doing and can ask “do you still beat your wife” questions to which there is no right answer.  You shift the burden from the prosecutor to yourself and the jury is no longer weighing the merit’s of the state’s case — they’re evaluating you.  Testifying in your own defense can be an all or nothing gamble.

4.  Juries Really Don’t Hold it Against You.

Juries are actually very good at not holding it against you if you don’t testify.  Most courthouses have videos they show the juries which discuss someone’s right to remain silent before they get into the courtroom.  Then the trial judge normally goes over the right not to testify.  Then most prosecutors go over the right not to testify for no other reason than they want to seem fair.  Then your lawyer gets to go over your right not to testify during jury selection and disqualify anyone that demands to hear your side of the story.  Jurors have this singular point drilled into their skulls all day and all week long.  My experience after trials when visiting with jurors is that they’re actually quite good at compartmentalizing and ignoring the Defendant if they didn’t testify.

5.  To limit damaging testimony.

You always have to testify honestly and no lawyer should ever tell you otherwise nor would any good lawyer imply that it’s OK for you to bend the truth.  If the truth is that you’re guilty then you obviously shouldn’t testify and it’s a wiser strategy to force the prosecution to prove your guilt beyond all reasonable doubt.  Also, if you have difficult facts to explain or some things in your history would look bad to a jury — then staying off the witness stand may be a good idea as well depending on your case.

When You Should Testify

When your lawyer tells you!  If I advise a client to testify, it is normally because there is some piece of evidence which is important to our theory which I cannot get before the jury any other way than through my client.  Also, many affirmative defenses are very difficult to legally raise with out testifying on your own behalf.

Listen to your lawyer’s advice with regards to testifying in your own defense.  They will clearly have a good understanding of the facts in your case and the experience to know whether it’s the right choice.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this post does not constitute a privileged communication and an attorney-client relationship is not established by any such communication.

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