Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON WHETHER A CRIMINAL DEFENDANT SHOULD TESTIFY (Part Two)

Before we go into other reasons that a defendant may decide not to testify, there is one thing I should make clear. Whether or not to testify is nobody’s decision than the defendant himself. It is not the decision of the defense attorney, nor the judge and certainly not the prosecutor.

While it is clearly advisable that a criminal defendant consider his lawyer’s advice, the right to testify includes the right not to testify and that right belongs to the defendant and nobody else.

There are a number of things to consider when deciding whether the defendant should testify. We began discussing them yesterday.

Sometimes, regardless of what the substance of the testimony is the defendant can simply come off poorly. Unlikable even. If so, this will not help when the jury deliberates and harkins back to its perceptions made during the trial.

People tend to not trust people they do not like. Further, sometimes, what the jurors wish to find colors their verdict. In other words, the fact that a jury wants to acquit the defendant can sometimes make the difference.

I believe it was Benjamin Franklin who said that it is better to keep ones mouth shut and look foolish than open it and remove all doubt. That theory fits in here.

Another thing to consider is what the defendant is even planning to say on direct examination, when it is his own attorney asking the questions. Is it worth the risk? Does it open the door to material the defendant wants to avoid?

“what do you mean? What door?”


“Opening the door” is lawyerspeak for when something happens during a trial which makes something that might otherwise not be admissible. For example, as discussed previously in the Boston Criminal Lawyer Blog, a witness’ credibility is not an issue unless that witness testifies. This is true of the defendant as well.

Usually, if a defendant does not testify, evidence of any prior criminal record cannot come into evidence. This is because, again usually because there are exceptions, any witness’ prior record is only relevant as it purtains to their credibility. Therefore, if the defendant does not testify, that prior record will usually not be considered relevant. That is something that the defendant was consider when deciding whether to take the witness stand in his own defense.

“Are there other examples where a defendant’s testimony could open the door to something?”

Sure. Countless, really. Let’s say that the defendant has a history of drug abuse and the judge has ruled that, if he takes the stand, the prosecutor cannot bring that up. However, while on the stand, the defendant volunteers that he has never abused drugs. Bingo! Now, it is relevant as to his credibility because he “opened the door
Sometimes, just bringing a subject up can have the same result. For example, let’s say the judge has ruled that any mention of the defendant’s education is not relevant and cannot be questioned by the prosecutor. But, then, during direct examination, the defense attorney starts bringing up the education. Often, this will change the rules and the judge will allow the prosecutor to explore it on cross examination.

These are just a few of the issues that must be considered when deciding whether or not the defendant should testify. Of course, there are other issues as well. For example, in some cases, a jury will particularly want to hear from a defendant and if that defendant does not take the stand, it is a glaring omission. It can be dangerous.

“So, what is the bottom line here, Sam? Should a criminal defendant testify?”

It is a question that differs with every case. The more cases you bring to trial, the more you learn this. There are many moving parts to the question and they all have to be weighed. This is why you want to have an experienced criminal defense attorney representing you if you are the defendant in a criminal trial. Uncle Joe’s tax attorney who is doing the family a favor for cheap might be nice and all, but he is unlikely to be your best bet at an acquittal.

Happy Saint Patrick’s Day and have a great, safe and law-abiding weekend!

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