Strategic Decisions and Considerations for Defendant Testimony
This is Wagoner Attorney Stuart Ericson. We’re talking about jury trials. Let’s talk about the defendant, whether they want to testify or not. First, it’d be their decision. The judge would ask them even at the time that that comes in the trial, do you know, you understand you have the right to testify? Have you discussed with your attorney the pros and cons? And then basically we’ll ask them, do you wish to testify? Because again, you do have that right.
Now, should it be a strategic decision? Yes. So let’s say you have three prior felony convictions within the last ten years. That’s gonna come out because that goes to credibility under the law. So if you testify the first, you know, now I would bring it out on direct and get it out of the way, but the prosecutor will still ask you, you know, and to try to kind of smear you in front of the jury. Isn’t it true you’ve been convicted of three felony convictions? Yes. And their hope is the juror, the jurors are gonna go, oh man, is he a convicted felon? He would be probably a liar. He would say anything. So you have to make strategic decisions on whether or not to testify.
And of course, it would make sense to testify and you’d have to testify under some, you know, like let’s say self-defense. You know, you’re gonna have to say that I feared for my life, my actions were taken based upon I thought I was gonna die, they were attacking me, this is how it started. You know, you would have to get those facts in. It’s probably not to come from you. An alibi witness is another one or an alibi defense. You know, you’d say, hey, I wasn’t, I was completely somewhere else. Now you could have other witnesses to do that, but you probably want to testify in an alibi defense. That could be me, I was watching an NFL football game with family, it was Monday night, that’s what we, you know, so there are certain times that you would testify.
Considerations when Testifying
Now some defendants just always want to testify, give their side of the story, and I’ve seen that go downhill fast. They just talk and talk and talk, say things that they might not, you know, that they shouldn’t have said, and then they get cross-examined by the state’s attorney who may do a good job and may twist their story, you know, in all kinds of stuff. I mean, I had, I’ve seen defendants take the stand and say, hey, you know, I was the victim of this offense, but the testimony say was what the police, you know, the police were called.
So if you’re a defendant and you say you’re the victim and, you know, you fled from the scene, the prosecutor is going to ask, okay, so you just, you said that you were the victim, yes, so the prosecutor will go on cross, so you called the police, and the defendant may say, oh, no, I didn’t, and you didn’t stay at the scene, no, I didn’t, you fled, yes, I did, I drove away. Then in closing argument, they’re gonna say, you know, if you’re the victim of a crime, usually you’re the one calling the police, you stay till they get there, and you, you know, you don’t flee the scene. Usually, it’s the perpetrator that doesn’t call the police and flees the scene. So again, you have to be careful when you testify. It’s got to be a strategic decision.
Consultation for Your Case
Now, if you have answers for all those things, heck yes, you can testify to that, but it’s got to make, you know, sense. You have to listen to what your testimony will be and how a jury will hear it. It may make you feel better to testify, but again, it’s your freedom at stake, prison or no prison, conviction or no conviction, so it’s gonna have to make strategic sense to testify or not to testify, and that’s where you talk to your attorney, you talk to me, and we go through it all, and then maybe you do decide, yeah, it’s crazy, we can fight this case without me testifying, or no, we really need my testimony, and then you and I would practice it. We would, we would practice and practice and practice until you get, you know, until you get good at it.
So whether or not the defense or the defendant testifies is up to the defendant, so if you have any questions about that, reach out to me, Stuart Ericson at wagonerlawyer.com.