Should I testify in my own defense?
In every criminal trial, the defendant must grapple with this question. An Arizona criminal defense attorney advising on the issue could consider a virtually unlimited number of strategies and concerns when responding to their client’s inquiry, and the client may walk away from the conversation even more confused than when they began.
The first ten amendments of the Constitution – known as the Bill of Rights Amendments – contain numerous guarantees of protecting from government intrusion. The Fourth, Fifth, and Sixth Amendments are particularly important in criminal defense, as they outline some of the boundaries which law enforcement officers and prosecutors cannot legally cross in making arrests, levying charges, and seeking convictions.
The Fourth Amendment protects against unreasonable searches of private places, such as the home, and unlawful seizure of private property. The Fifth Amendment requires grand jury indictments for capital offenses – like murder – in addition to protecting witnesses against making self-incriminating statements under oath. The Sixth Amendment guarantees access to a speedy public trial, counsel for the defense, compulsory process for bringing witnesses to court, and a few other provisions.
These amendments work as a comprehensive package to ensure fairness in the justice system. The Fifth Amendment prohibits the state from forcing the accused to testify and has also been construed to guarantee the defendant’s right to testify on their own behalf, if they so choose.
Why include both? At times, it may be unfair to force a defendant to testify because doing so might expose unrelated crimes and controversial facts unrelated to the present charge or poison the jury’s ability to make a fair assessment of the evidence. On the other hand, some charges are so speculative or backed by so much circumstantial evidence that preventing the accused from explaining the evidence in court would all but guarantee a conviction regardless of whether they actually committed the crime.
But those are just the legal issues – in a criminal case, there are more factors to consider than constitutional fairness. A sympathetic jury (perhaps drawn from a more representative group of peers in a city court), a particularly charismatic or relatable defendant, powerful testimony from a key opposing witness, or a complex or novel defense theory may make the defendant’s testimony strategically helpful. Conversely, an aggressive prosecutor, weak-spoken defendant, or lack of convincing evidence against the defendant may make the defendant’s testimony harmful to the defense.
Given all of these concerns, what is the correct answer to the question of whether you should testify in your own defense? Uttered thousands of times daily in law schools around the world, the answer is: “It depends.” The most effective strategy for your defense is highly dependent on the facts and circumstances of your case, which can only be analyzed after an honest and thorough consultation with an attorney. A Scottsdale defense attorney handling a case in the Maricopa County Superior Court may prefer different tactics than a Phoenix public defender working against federal charges. Whether to testify is ultimately left to the accused, but an informed decision is the best decision.