When it comes to criminal cases, the defendant in the case has an absolute right to testify or not to testify. The prosecutors cannot force an individual to testify in a case. In fact, there's a jury instruction in Los Angeles that says that the jury is not to assume anything bad about a defendant who does not take the witness stand in their own 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 – bailiff needs to know the answer to that question for security purposes.
Defendant has the Right to Not Testify in Los Angeles Criminal Cases
Obviously, the defense attorney will discuss it with the client and the client will make a decision whether they want to testify. And even though the client will be told outside the presence of the jury if they decide not to testify that they have an absolute right to testify. Nobody can make you testify and nobody can make you not testify. So, if a defendant decides they don't want to testify, then they're going to be told. 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 get an opportunity to ask him questions about his case and can try to challenge them and show that they're not telling the truth to try to get the conviction in a jury trial.
So, when a defendant is deciding whether or not to testify in a criminal case in Los Angeles, probably the best practice is to talk to the defense attorney, because the defense attorney will probably have an idea of where the prosecutor is going to attack the defendant when they testify, and also the defense attorney is going to have a good idea as to whether or not it would actually be beneficial for the defendant to testify.
Defense Attorney Evaluation Whether Defendant Should Testify
When I evaluate whether I think a defendant should testify in a criminal case, I'm looking at, if they testify what can they give us that we don't have? In other words, we need something. We need, for example, everybody in a house says that a person slapped somebody on the top of the head.
They're taking the position they didn't slap him on the top of the head. What they could give us is, they could give us their version of events and why they believe the other people in the house are lying about it because they have a grudge against them, they are biased against them or whatever their defense is.
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. But, if I have a case where I think it's a weak case and the defendant testifying is not going to help – we've already got the evidence in saying the guy didn't do it.
Maybe the prosecutors were stupid enough to bring the defendant's statement in and the whole statement comes in and 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 at that point, the defendant to take the witness stand and say that and subject himself to cross-examination, potentially looking bad in front of the jury and losing the case that way.
Because that is a way to lose a case. If you take the witness stand and come off not credible when the prosecutor is asking you questions and you're telling your story. That alone could cause a jury to say, you know what, we don't believe this person.
They couldn't answer the prosecutor's questions. We didn't believe their story and we didn't like the way they looked. We didn't like the way they talked. They seemed sneaky – whatever the perception is. So, that's why a lot of times criminal defense attorneys won't have their client testify because of the real risk and real danger of them coming off poorly in front of the jury and causing the guilty verdict – because of that and that alone.
The bottom line is in these criminal cases in Los Angeles, California and across the country, all defendants in criminal cases have the absolute right to testify or not testify and that's the way it should be because if someone is charged with a crime, they're the ones that are going to have to serve the time if they're convicted.
So, why shouldn't they decide whether or not they want to testify, and 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 they are to just look at the evidence and see if the prosecutor proved their case or did not prove their case.