Many of our clients ask us whether or not it’s a good idea to testify in their own criminal cases.
Whether the case is a New York State case or a federal one, testifying on your own behalf is fraught. It comes with a lot of dangers, and usually with few benefits.
Most of the time, we will tell you to stay off the stand. Here’s why.
Testifying Opens You Up to Cross-Examination
You’ll be up against polished prosecutors who know how to get under your skin. They may cause you to break down, get emotional, get angry, or stumble over your wording until you look untrustworthy or evasive. They may catch you in small lies or even small details you don’t remember very well and make it look like you’re trying to pull one over on the jury.
Few people can withstand this kind of stress. Furthermore, few people can make a better impression than the myriad of government witnesses who may be called against them, people who have testified at so many trials they’ve lost count and who know exactly how to make their testimony work for them.
If You Have a Criminal Record, Testifying is a Terrible Idea
Federal Rule of Evidence 404 prevents prosecutors from bringing up your past criminal history in an attempt to impeach your character. They can only do this if you’re up on the stand, whereupon they can ask about your past record directly.
The moment the jury perceives you as some kind of career criminal, all bets are off. It’s unlikely they’ll believe you and it’s unlikely they’ll acquit you. If this isn’t the very first time you’ve been charged with something we’re generally going to want to keep you off the stand.
Don’t Testify If You Know You’re Guilty
Criminal defense lawyers defend guilty clients sometimes. It’s our job.
That doesn’t mean we will ever encourage you to get up on the stand and commit perjury. If you do, you could get into even more trouble. If we know you’re not telling the truth then we’re going to keep you off the stand. If you know you’re not telling you the truth it’s better for you to stay off the stand and to keep your mouth shut.
Remember, you’re already proclaiming your innocence by taking the matter all the way to trial. Most guilty clients plea bargain.
There Are Exceptions
There are times where the jury won’t find you believable if you don’t get up and testify. If your own case is strong, if you’re capable of making a positive connection with the jury, and if you can keep a cool head during the cross-examination then we might suggest you get up there and testify.
There are also cases where the trial is going so badly that you almost have nothing to lose by standing up and speaking on your own behalf.
If we do, this is a matter of trial strategy and has been carefully reasoned after reviewing all available facts and factors.