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Testifying at Trial

When you’re accused of doing something wrong, it’s only natural to want to defend yourself and explain your side of the story. Unfortunately, as the saying goes, “anything you say can and will be used against you.” There’s a reason you’re advised that you have the right to remain silent – it’s almost always in your best interest to refuse to answer any questions or make any statements until you have an experienced defense attorney to advise you on what you should or should not say. It may even be in your best interest to avoid testifying at your own trial, as counterintuitive as that might seem. 


Why Wouldn’t I Testify?


Every case is different, and there’s no “one-size-fits-all” answer to whether or not you should testify at your own trial. In some situations, your testimony might help you win your case, or help you secure a better final outcome. For example, if you are charged with assault, but your actions were in self-defense, your testimony explaining that you felt threatened and acted to protect yourself could be a vital part of your defense strategy. 


But there’s a reason the right to remain silent has been amended into our constitution with the fifth amendment. By remaining silent, you can’t accidentally incriminate yourself. Pleading the fifth protects you from revealing any potentially incriminating information, and forces the prosecution to prove your guilt beyond a reasonable doubt without your help.


It might seem like there’s an obvious solution to this risk – just don’t say anything incriminating, right? This could theoretically work when it comes to the defense calling you to testify. Your defense attorney isn’t going to ask you any questions whose answers could cause you trouble, and you can discuss what should or should not be said when preparing for the trial. 


Unfortunately, the same cannot be said of the cross-examination. Cross-examination is when the prosecution gets to interview witnesses called by the defense, and vice versa. When you take the stand at trial, you are agreeing not only to answer your own defense attorney’s questions, but also the prosecuting attorney’s. Your agreement to “tell the truth, the whole truth, and nothing but the truth” on the stand applies, not only to your own attorney’s questions, but to the prosecution’s questions as well. 


An attorney may not always take advantage of a cross-examination, but they must be presented with the opportunity. In criminal cases, the prosecution will almost always choose to move forward with a cross-examination if the defendant elects to testify. Even with a highly experienced defense attorney advising you, there’s just no way to predict exactly what a prosecutor might ask, which means there’s no way to prepare yourself ahead of time. Again, anything you say on the witness stand can and will be used against you, so even the slightest verbal misstep can give the prosecution more ammunition to secure a conviction.


That’s why the fifth amendment is so important. If you were legally bound to testify, you might be forced to incriminate yourself during the cross-examination. 


How Do I Decide Whether or Not to Testify?


Your attorney will likely recommend either that you do or do not testify, and it’s important to keep their advice in mind; they have years of education and experience behind their suggestion, so you shouldn’t dismiss their words lightly. 


However, the decision of whether or not to take the witness stand is, at the end of the day, yours and yours alone. Your attorney cannot prevent you from testifying if you choose to do so, nor can they force you to testify if you do not wish to do so.


Tips for Testifying in Your Own Defense


If you do choose to take the stand, there are a variety of ways you can prepare yourself ahead of time, and things you can do the day of your testimony to help your case: 


  • Practice your testimony with your defense attorney, and review any major points they recommend you cover before you take the stand
  • Role-play a cross-examination with your defense attorney to prepare yourself for unexpected questions or conversational turns
  • Dress professionally, like you would for a job interview
  • Keep your composure while on the stand; any anger or aggression in response to the prosecution’s questions can cause a multitude of problems
  • Listen to every question closely and carefully, and make sure you understand them before answering
  • Don’t be afraid to ask the prosecution to repeat themselves or to clarify their question if you aren’t sure what they’re asking
  • Consider your answer carefully before speaking
  • Be as clear and concise as possible when answering to avoid rambling sentences that may reveal more than you mean to


Kissimmee Criminal Defense Lawyers 


The decision of whether or not to testify at your own trial is no small thing, and it’s important to consult an experienced defense attorney before committing to anything. At Hanlon Law, our legal team has nearly two decades of experience in the courtroom. We’ll walk you through every step of the process and ensure you understand all your options and the best course of action to take. With our aggressive approach and dedicated attention, we’ll help you secure the best possible outcome. Contact Hanlon Law today to schedule a free consultation.

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