There is always a question in a criminal case of whether or not a criminal
defendant should take the witness stand in their own defense. And it is
a good question. Real criminal defense lawyers (those who actually have
a talent for trying cases) are divided on the issue. Some trial lawyers
steadfastly believe a defendant should not take the stand, while others
firmly believe the defendant should take the stand. Our system is designed
to make the government (prosecution, the “people”, the state)
put on evidence that overcomes a presumption of innocence and only proves
that person guilty when the evidence is so convincing that it is “beyond
a reasonable doubt.”
Does the Fifth Amendment Still Work?
In theory that is a beautiful design! In reality it is very fragile and
depends on a population of juries that enthusiastically abide by those
principles. A jury must be of the mind to know that it is better to let
a guilty person go free than to risk convicting someone who is innocent.
This is a tough job to assign to normal jurors, especially in this modern
world. The general public (from which jury pools are drawn) is so polluted
by news media about crime and right-wing ideas that it seems rare to get
the proper cynical viewpoint to follow these standards of proof. And cases
take so long that it is hard to get the kind of jurors you need to spend
a couple or three weeks to hear a properly presented case. If you have
a “reasonable doubt case” you want intelligent jurors to hear
Once you eliminate all of those who could not survive for three weeks if
they had to leave their jobs and families, what you are left with is highly
questionable. In some ways the jury trial is a dinosaur and only affordable
for the rich. And even the rich cannot force the system to have jurors
that are highly functional. They can, however, afford lawyers who can
devote more time, hire more experts, and fund other things that may give
an edge to the defense.
Given all this, the question of taking the stand seems more important.
It is still an individual decision and it should be a decision discussed
thoroughly, pros and cons, with your lawyer. I would not avoid the stand
if it were just the fact that I had a criminal record. A good lawyer can
diffuse that and, properly handled by the defendant, can really be a non-factor,
or a least a lesser factor. If that happens you need to own up to your
past, answer the questions candidly, and move past it. Realistically,
juries do not necessarily think you are perfect and the more candid or
truthful you are about being imperfect, the more that can help you.
When You Need to Tell Your Story to the Jury
One thing to always consider is the question of whether you need to take
the stand to explain things that just cannot be explained without you
telling them. An example is a situation where you were there and involved,
but you had no idea that anything was going to happen. How is the jury
going to know what was or was not in your mind?
For instance, if you were the driver of a vehicle and one of the people
in the vehicle unexpectedly pulled out a gun and shot at someone. How
would the jury ever know you had no idea what was going to happen unless
you explain it to them? Juries can understand an explanation, but sometimes
you have to “man up” and give it to them. This is always a
question you should decide ONLY after you and your attorney thoroughly
discuss the issue
Some attorneys feel more comfortable without the defendant taking the stand,
while others feel more comfortable when the defendant takes the stand
to explain. There is no uniform rule; it has to be decided individually
in each case. Again, this is only an article designed for thought and
discussion. YOU need to talk to your lawyer!