To Testify or Not: The Dilemma of Defendants in Criminal Trials

One of the most consequential decisions in any criminal trial is whether the defendant should take the stand in their own defense. This choice is loaded with legal, strategic, and psychological complexities. While testifying offers the opportunity to present a personal narrative directly to the jury, it also exposes the defendant to rigorous cross-examination by the prosecution, which can unravel their credibility and shift the course of the trial.

Criminal defense attorneys must weigh multiple factors before advising their clients on this decision. How strong is the prosecution’s case? How will the defendant hold up under cross-examination? What are the jury’s likely perceptions? Each case presents unique challenges, and there is no one-size-fits-all answer.

The Right to Testify and the Right to Remain Silent

Under the Fifth Amendment of the U.S. Constitution, no defendant can be compelled to testify against themselves. This protection serves as a bedrock principle of U.S. criminal law, ensuring that individuals are not forced into self-incrimination. At the same time, the Sixth Amendment guarantees the right to present a defense, which includes the option for a defendant to take the stand and tell their side of the story.

A key principle stemming from Griffin v. California, 380 U.S. 609 (1965), is that a prosecutor cannot comment on a defendant’s decision not to testify as an implication of guilt. Judges are also required to instruct the jury that the defendant’s silence cannot be used against them in deliberations. However, despite these legal safeguards, jurors often carry subconscious biases. Many believe that an “innocent person would speak up,” making a defendant’s silence a risk in itself.

Defense attorneys must carefully weigh this potential jury bias against the risks of cross-examination when advising their clients.

The Risks of Testifying

The primary danger of a defendant taking the stand is the unpredictability of cross-examination. Prosecutors are trained to dismantle a witness’s credibility, and defendants are particularly vulnerable to aggressive questioning while being the center of attention in a courtroom with multiple eyes on them. A defense attorney can thoroughly prepare a defendant for cross-examination, running mock exercises and rehearsing likely questions. However, no amount of preparation can fully replicate the high-pressure environment of a real courtroom, where the presence of a judge, jury, and a skilled prosecutor can create an entirely different level of stress and unpredictability.

Exposure to Prior Convictions

One of the biggest risks is that prior convictions (which might otherwise be inadmissible) can be introduced to impeach the defendant’s credibility. Under Federal Rule of Evidence 609, prior felony convictions and certain crimes involving dishonesty can be brought up in cross-examination to suggest that the defendant has a history of being untruthful. Similarly, state courts have their own evidentiary rules that allow for impeachment with prior convictions, often mirroring the federal standard in permitting the use of felony convictions and crimes of dishonesty to challenge a witness’s credibility.

If a defendant has a history of criminal offenses, even unrelated ones, testifying may do more harm than good. A well-prepared prosecutor will use these convictions to plant doubt in the jury’s mind about the defendant’s trustworthiness.

Prosecutorial Tactics and Traps

Experienced prosecutors know how to control the narrative through cross-examination. They use leading questions, highlight inconsistencies from prior statements, and confront the defendant with emotionally charged hypotheticals designed to provoke frustration or defensiveness. For example, in a self-defense case, a prosecutor might press the defendant on why they “didn’t walk away” or “couldn’t have used less force,” aiming to make them appear unreliable, evasive, or even deceptive. However, a skilled and competent defense attorney will recognize these tactics and object when necessary to protect the defendant from unfair, nonrelevant, or prejudicial questioning.

The Peril of Over-Explaining

In an attempt to persuade the jury, many defendants can fall into the trap of over-explaining their actions. This often leads to contradictory statements, unnecessary details, or emotional responses that prosecutors can exploit. A calm, measured demeanor is crucial, but few defendants are experienced enough to maintain this under pressure. Even those with compelling defenses may struggle simply because of the anxiety and stress of speaking in a courtroom with all eyes on them. Nervousness can make a defendant appear uncertain or deceptive, even when they are telling the truth.

For instance, a defendant suffering from anxiety or PTSD may shut down or struggle to respond when aggressively questioned. They might need to take deep breaths to calm themselves, or they could be easily triggered by the prosecutor’s tone. While these reactions have nothing to do with guilt, they can create negative optics in front of a jury, making the defendant appear evasive or unreliable. In some cases, even when testifying could otherwise help the defense, it may actually be in the defendant’s best interest not to take the stand. A strong defense attorney must weigh these factors carefully, preparing their client for these challenges and, when necessary, ensuring the jury understands that such behaviors stem from stress, not deception.

Prior Statements to Law Enforcement

If a defendant’s prior statements are admitted into evidence, whether in an interrogation, a written statement, or even casual remarks to officers, these statements can and will be used against them in trial. A defendant who chooses to testify must ensure their testimony aligns with these prior statements, as any inconsistency can be seized upon by the prosecution to undermine credibility. If those statements contain inconsistencies or admissions that could be harmful, testifying may offer an opportunity to explain or reframe them. When a defendant does take the stand, a skilled defense attorney may choose to embrace bad facts by addressing damaging statements during direct examination before the prosecutor can use them on cross. This strategy allows the defense to control the narrative, present the statements in context, and build credibility with the jury by demonstrating transparency. Acknowledging difficult facts head-on, rather than waiting for the prosecution to weaponize them, can sometimes turn a potential weakness into an opportunity to strengthen the defense’s case. In some cases, however, avoiding testimony altogether may be the best strategy to prevent further scrutiny.

Additionally, if the defense attorney successfully suppressed statements made by the defendant due to law enforcement’s failure to properly admonish them of their Miranda rights, testifying can risk opening the door to impeachment. While a suppressed statement cannot be used in the prosecution’s case-in-chief, if the defendant takes the stand and contradicts what they previously told police, the prosecution may be able to introduce the suppressed statements to challenge their credibility. This risk can be significant, as the jury may then hear damaging statements that the defense had initially kept out of trial.

The Potential Benefits of Testifying

Despite the risks, there are scenarios where testifying can significantly strengthen a defendant’s case.

Personalizing the Defense

Juries respond to human stories. When a defendant testifies, they can offer context, emotion, and sincerity, elements that are difficult to convey through other witnesses alone. In cases where the defendant’s intent or state of mind is critical, testifying can provide the jury with a firsthand account of events that might not otherwise be fully understood.

For instance, in a self-defense case, the defendant’s testimony is often crucial in helping the jury not only hear but feel the fear they experienced in the moment. A well-prepared defendant can explain the split-second decisions they made, their perception of imminent harm, and why they believed using force was necessary. Without that testimony, jurors may struggle to understand the urgency and panic that led to the defendant’s actions, especially if all the jurors see from the prosecution’s case in chief is the testimony of the alleged victim and video footage with no audio of the defendant attacking and concussing the alleged victim.

Similarly, in cases involving allegations of rape or sexual assault, a defendant’s testimony can be pivotal when consent is the central issue. If the defendant truly believed there was consent, their words, tone, and demeanor while recounting their understanding of the situation can be powerful. They can explain why they interpreted their partner’s actions as consensual, clarify any miscommunications, and counter the prosecution’s attempt to paint them as predatory. In such cases, the ability to present a sincere and credible version of events can be the difference between conviction and acquittal.

Testifying can be particularly helpful when the defendant has a charming and charismatic personality, making them extremely likable to the jury. This, in turn, can make them more sympathetic and relatable, and thus a bit more difficult to find “guilty.”

Countering a Weak Prosecution Case

If the prosecution’s case is based on circumstantial evidence or lacks strong witness testimony, a defendant’s explanation might fill in gaps and cast doubt on the government’s claims. In some cases, the absence of a credible alternative explanation can leave jurors with unanswered questions. Testifying gives the defendant a chance to reshape the trial’s narrative, particularly when forensic evidence is ambiguous or when key prosecution witnesses have credibility issues.

On the other hand, when the prosecution’s case is especially weak, it may be strategically wiser for the defendant not to testify. In these situations, the defense can argue that the prosecution has failed to meet its burden of proof beyond a reasonable doubt without the risk of subjecting the defendant to cross-examination. This approach can be particularly effective when the defendant is not a naturally sympathetic or likable witness. If the defendant’s demeanor or personality could negatively influence the jury, keeping them off the stand allows the defense to focus solely on the prosecution’s shortcomings rather than giving jurors an opportunity to form unfavorable impressions based on something other than the evidence.

Key Factors to Consider When Deciding Whether a Defendant Should Testify

Strength of the Prosecution’s Case

The strength of the prosecution’s evidence is one of the first considerations when deciding whether the defendant should testify. If the government’s case is weak (relying on circumstantial evidence, untrustworthy witnesses, or speculative conclusions), it may be safer for the defendant to remain silent. In these situations, the defense can focus on exposing the prosecution’s shortcomings and arguing that the burden of proof has not been met. However, if the prosecution’s case is strong, the defendant may need to testify to provide an alternative explanation. A compelling, firsthand account can help counteract the government’s narrative and create reasonable doubt.

The Defendant’s Demeanor and Ability to Withstand Cross-Examination

Not every defendant is well-suited to testify, even if their story is strong. The ability to remain calm, composed, and credible under aggressive questioning is critical. Some defendants, especially those with anxiety or PTSD, may struggle to maintain their composure when confronted by a skilled prosecutor. If a defendant appears defensive, evasive, or inconsistent, it can harm their credibility in the eyes of the jury. In such cases, it may be better to avoid testifying altogether rather than risk an unfavorable impression that could undermine the defense.

Defendant’s Statement to Law Enforcement

If a defendant spoke to police, those statements, whether exculpatory, neutral, or damaging, can be used by the prosecution. Unlike other out-of-court statements, a defendant’s own words are not considered hearsay when introduced by the prosecution, meaning the jury will hear them regardless of whether the defendant testifies.

If the defense successfully suppressed a defendant’s statements, testifying can create new risks. Once a defendant takes the stand, they may open the door to impeachment with those previously suppressed statements, allowing the jury to hear them after all. This risk underscores the importance of carefully weighing the decision to testify, as the potential benefits must outweigh the dangers of reviving harmful evidence the defense had successfully kept out of trial.

Prior Convictions

Testifying can also open the door to impeachment evidence. If a defendant has prior convictions, especially those involving dishonesty or violence, the prosecution may use them to attack their credibility. This can be damaging, even if the prior offense is unrelated to the current charges. Attorneys must assess whether pre-trial motions can limit the admissibility of such evidence or whether the risk of exposure is too great. In some cases, keeping the defendant off the stand may be the best way to prevent the jury from hearing about past criminal history.

Jury Perception and Bias

How the jury is likely to perceive the defendant’s testimony is another crucial factor. Some juries may be skeptical of law enforcement or government witnesses, making a defendant’s testimony more persuasive. Others may inherently trust authority figures, meaning the defendant’s testimony could be scrutinized more harshly. If there is a risk that the jury is predisposed to doubt the defendant, testifying could do more harm than good. A strong attorney will gauge the jury’s tendencies and adjust their strategy accordingly.

Alternative Ways to Present the Defendant’s Story

In some cases, the defense can introduce key facts without putting the defendant on the stand. Witness testimony, cross-examination of the prosecution’s witnesses, expert analysis, or forensic evidence may be enough to challenge the state’s case. If the defendant is not a particularly likable or persuasive witness, it may be more effective to keep the focus on weaknesses in the prosecution’s evidence rather than risk damaging the case with unconvincing testimony.

Weighing the Options

To testify, or not to testify? While testifying can humanize the defendant and counter prosecution claims, it also invites intense scrutiny. There is no universal answer—what works in one case may backfire in another. By carefully weighing jury perception, evidentiary risks, and the case’s strength, defense attorneys can help clients make the best choice. Ultimately, whether a defendant testifies or remains silent, the goal remains the same: achieving the best outcome while protecting the defendant’s rights.