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Does A Defendant In A Criminal Case Have To Testify?

Posted by Ronald D. Hedding, ESQ. | Oct 12, 2018

In criminal cases, the defendant holds a fundamental right to testify or not. 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 take the witness stand 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 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 have an opportunity to ask him questions about his case, challenge them, and show that they're not telling the truth in order to try to get a conviction in a jury trial.

When a defendant is considering whether or not to testify in a criminal case in Los Angeles, it's advisable to consult the 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.

Defense Attorney Evaluation 

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. 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 give us 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, 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. 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 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 couldn't 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 a lot of times, criminal defense attorneys won't have their clients testify because of the real risk and danger of them coming off poorly in front of the jury and causing the guilty verdict—because of that and that alone.

In criminal cases in Los Angeles, California, and across the country, all defendants possess the unequivocal right to testify or not. This right is crucial, as it allows the defendant to make a decision that could significantly impact their case and their future.

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.

About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.

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