My Client Doesn’t Have to Testify for Us to Have a Defense
One of the biggest misconceptions about a criminal trial is that the defendant will eventually have to take the witness stand and explain what happened. People naturally assume that if someone is accused of a crime, the jury is going to want to hear that person’s side of the story. And they’re probably right about that. But wanting to hear from somebody and needing that person to testify are two very different things. In my experience, it is extremely rare that I have a client testify at trial. Usually there are better ways to present the defense without putting the client in a position where he has to answer questions from the prosecutor.
The burden of proof in a criminal case belongs to the government. My client doesn’t have to prove his innocence, and he doesn’t have to testify just because he’s been accused of something. I take that burden seriously, and it sits at the center of how I think about trial strategy. If the government has a weak case, why would I give the prosecution another chance to strengthen it by putting my client on the stand? In plenty of cases, the best thing we can do is focus on what the government can actually prove rather than try to explain every allegation through my client’s testimony.
My biggest concern about a client testifying is whether his testimony will line up with the physical evidence and with statements he may have made before. Honest people run into this problem all the time. A criminal case can take months or even years to resolve. During that time, a person may relive the same event over and over, talk about it with different people, review the evidence, and gradually remember or describe certain details differently. Sometimes those differences are insignificant. Other times, they become a serious problem on cross-examination, where a prosecutor can take a minor inconsistency and use it to attack everything the defendant says.
There’s also the reality that most of my clients aren’t public speakers. They’re ordinary people in an extraordinarily stressful situation. Very few are comfortable sitting in a courtroom with twelve strangers watching while an experienced prosecutor questions them about one of the worst days of their lives. Being nervous, getting defensive, struggling to remember details, or just not answering a question well can all affect how someone comes across. None of that tells you whether the person is guilty, but jurors notice it.
That’s one reason we put clients through a practice cross-examination before making a final decision about testifying. It’s one thing to sit across from your lawyer in an office and explain what happened. It’s something entirely different to have someone challenge your answers, confront you with prior statements, and ask questions in a way that doesn’t let you explain everything you want to explain. Sometimes a client goes through that and realizes testifying isn’t something he can comfortably do. I would much rather we find that out in my office than in front of a jury.
There are exceptions. I’ve had clients testify at Stand Your Ground hearings, where the issues being decided can make the client’s own account particularly important. Even then, it’s not a decision I take lightly.
It’s also why I need clients to be honest with me from the beginning. If a client’s account changes, or conflicts with what he told me earlier, that limits what I can do. There are ethical rules on how a lawyer can present testimony he knows to be false, and I don’t want to build a defense around a version of events that can’t hold up.
When clients tell me they want the jury to hear their side of the story, I understand. But their side of the story doesn’t have to come from their own mouth. It can come from the physical evidence, surveillance video, other witnesses, inconsistencies in the government’s evidence, or the questions we ask on cross-examination. Sometimes the most effective way to tell my client’s story is to show the jury why the government’s version doesn’t make sense.
Of course, there’s a real-world problem with that approach. Jurors are instructed that a defendant has a right not to testify and that they cannot hold that decision against him. During jury selection, we talk about it, and prospective jurors will generally tell us they understand and can follow the law. But I’ve had jurors tell us after a trial that they really needed to hear from our client. That’s frustrating, because it’s exactly the inference the law tells them not to make. It’s also human nature. People want to hear both sides, and knowing the law doesn’t always make that expectation go away.
So the decision isn’t as simple as saying the defendant has a constitutional right to remain silent, so he shouldn’t testify. Some jurors will want to hear from him no matter what the judge tells them, and in some cases his testimony may be necessary to present the defense he wants to pursue. In the end, the decision belongs to my client. My job is to make sure he understands the risks, prepare him if he chooses to testify, and give him my honest advice. More often than not, that advice is to make the government prove its case without giving the prosecution a chance to question him.
I don’t need my client to convince twelve people he’s a good person. I need the government to prove he committed the crime he’s charged with.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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Jaffe, Hanle, Whisonant & Knight, P.C.
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(205) 930-9800