Should You Take The Witness Stand?

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 3-Nov-2015

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 that case.

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!

Categories: Criminal Defense