In criminal cases, the defendant's right to testify or remain silent is a fundamental one. This decision is entirely theirs, and prosecutors are not empowered to compel them to testify. In Los Angeles, a jury instruction explicitly states that the jury should not draw negative conclusions about a defendant who chooses not to testify in their defense.

So, when we do these trials—and I've done a lot of them over the last twenty-five years—we go back in chambers when it comes time for the defense's case and discuss with the prosecutor and the judge whether or not the defendant is going to testify—especially if the defendant is in custody—and the bailiff needs to know the answer to that question for security purposes.

Obviously, the defense attorney will discuss it with the client, and the client will decide whether they want to testify. And even though the client will be informed outside the jury's presence, if they decide not to testify, they have an absolute right to remain silent. Nobody can compel you to testify, and nobody can prevent you from testifying. So, if a defendant decides they don't want to testify, they will be informed. They're going to waive their right to testify.

Let's assume in a criminal case that the defense attorney did not want the defendant to testify, but the defendant wanted to testify. In that scenario, the defendant has an absolute right to testify.

So, that defense attorney would basically be overruled on that, and the defendant can testify — tell their story, obviously through their attorney, and then the jury will evaluate their testimony. Of course, the potential downside of the defendant testifying is that if they do testify, they don't just get to testify and get off the witness stand.

The prosecutors have the opportunity to ask him questions about his case, challenge his answers, and demonstrate that he is not telling the truth in an attempt to secure a conviction in a jury trial.

When a defendant is considering whether to testify in a criminal case in Los Angeles, it's advisable to consult a defense attorney. The defense attorney, with their experience and knowledge of the case, can provide valuable insights. They can anticipate where the prosecutor might challenge the defendant's testimony and assess whether testifying would be beneficial for the defendant. This consultation can help the defendant make an informed decision, instilling trust in the attorney's expertise.

Defense Attorney Evaluation 

When I evaluate whether a defendant should testify in a criminal case, I'm looking at whether they will testify and what they can provide that we don't already have. In other words, we need something. For example, everybody in a house says that a person slapped somebody on the top of the head.

They're taking the position that they didn't slap him on the top of the head. They could provide their version of events and explain why they believe the other people in the house are lying about it: they have a grudge against them, are biased against them, or have some other defense.

So, if we can't get the defense in any other way but the defendant testifying, that might be a good reason to have the defendant testify. However, if I've a case where I think it's a weak case and the defendant testifying is not going to help, we already have evidence indicating that the guy didn't do it.

Perhaps the prosecutors were foolish enough to introduce the defendant's statement, and the entire statement is presented. In that statement, the defendant told the police, "Listen, I didn't do it."

Here's who did it, and I don't care what you say; I'm innocent. Okay, do we really need the defendant to take the witness stand and testify, subjecting himself to cross-examination and potentially appearing unfavorable in front of the jury, which could lead to a loss of the case?

Because that is a way to lose a case, if you take the witness stand and come off as unreliable when the prosecutor asks you questions and you tell your story, that alone could cause a jury to say, "You know what? We don't believe this person."

They were unable to answer the prosecutor's questions. We didn't believe their story, and we didn't like the way they looked or talked. They seemed sneaky—whatever the perception. So, that's why, many times, criminal defense attorneys won't have their clients testify due to the real risk and danger of them coming across poorly in front of the jury and potentially causing a guilty verdict, solely because of that, highlighting the need for caution in such decisions.

In criminal cases in Los Angeles, California, and across the country, all defendants have the unequivocal right to testify or remain silent. This right is crucial, as it allows the defendant to make a decision that could significantly impact their case and their future. It's a right that should be respected and upheld in every criminal case.

So, why shouldn't they decide whether or not they want to testify? Certainly, it's not fair. But if they don't testify, a jury holds that against them, and that's why you get that jury instruction read to the jury if a defendant doesn't testify that they are not to hold that against them and that they are to just look at the evidence and see if the prosecutor proved their case or did not prove their case.