All of the articles in this series show you how to find your way through the maze of the criminal
jury trial process. You are at the close of the State's case-in-chief. You have a serious decision to make:
Do youI take the stand? The author, a seasoned criminal defense lawyer, has written this article from
his vast experience to guide you while you are trying to understand what you need to know about testifying on
the witness stand.
Should I take the Stand?
The State has put on its case-in-chief and announced, "The State now rests." You
have been present the entire time. You observed the art of Voir Dire. You heard the Opening
Statements. You saw and heard how the victim and the other civilian witnesses testified on Direct.
You observed your lawyer during his Cross-Examination. You were alert and made notes.
The jury is ushered out and your lawyer moves the Court for a directed verdict for the Defense. This is called a motion
for judgment of acquittal at the close of the State's case.
The burden on this motion is for
the Defense to show that "in the light most favorable to the State, the evidence presented does not prove a prima
facie case." The Defense is asking the Court to take the case out of the jury's hands by directing a verdict
for the Defense, as a matter of law. If the Judge denies that motion, the Defense will have the opportunity to put on
its case. The question the Judge will ask at this point is whether the defendant will take the stand to testify.
This raises a question of fundamental constitutional rights.
Under the Fifth Amendment to the Constitution
of the United States, the defendant cannot be compelled by government action "to be a witness against himself" and
he cannot be deprived of "life, liberty, or property, without due process of law." While you do, of course,
have the absolute right to take the stand and testify at your trial, you cannot be compelled to do so. The State cannot
force you to testify without violating your fundamental rights. Even your own lawyer cannot force you to take the stand.
On the other hand, if you decide to take the stand, your lawyer cannot prevent you from doing so any more than the prosecutor
or the Judge could prevent you from testifying.
The Sixth Amendment embodies your trial
rights and guaranties that you will have the "Assistance of Counsel" for your defense. This
has been held by the case law to mean that you are entitled to have the effective assistance of counsel.
Your lawyer could jump up and down and yell with his finger in your face that, "I won't allow you to testify except over
my dead body." Though that is dramatic, the simple truth is that whether or not you actually take the stand is
100% your decision to make. It is your fundamental Constitutional right. Only you can assert it or waive it.
Why shouldn't I testify in my own case?
are very solid reasons why defendants generally shouldn't testify. Your lawyer understands this from his trial experience.
He will go over these reasons with you as you weigh the pros and the cons
and before you finally decide whether or not you will testify at your trial. Here is a list of reasons that could hurt
your case if you do take the witness stand:
Felony Convictions: If you have
you ever been convicted [adjudicated guilty] of any felony offense for which you could (by statute) be required to spend a
term in prison in excess of 364 days, you will be required to tell the jury how many convictions for such crimes you have
on your record. If you only had one prior case but there were four charges in the same case...that counts as four felony convictions.
Once the jury hears that information, you will lose credibility. The jury would be entitled to disregard
everything else you say.
Moral Turpitude Convictions: This area
means any misdemeanor or felony conviction including perjury [lying in a judicial proceeding] or any crime
of deceit, fraud, theft, cheating]. In some jurisdictions this might include drug convictions
as the doing of drugs could be characterized as sneaking, cheating, etc. These will also affect your credibility.
The jurors might reason, "If we err in our decision, let it be on the side
of putting this defendant in prison and keeping him away from the public."
Inability to Answer Rapid-fire Questions: Lawyers, including the prosecutor, are highly skilled
in asking questions. They know how to set you up for a huge fall through their questioning. Even your lawyer would have a
hard time under the barrage of the prosecutor's pointed questions. What makes you think you would fare any better?
You have Nothing to Add to your Case: Remember at all times that the State is required to
prove your case beyond a reasonable doubt. If they fail to do that, you win. Unless you blunder
into saying things on the stand that will fill in the missing details of the State's required proof and provide the basis
for the jury to convict you, you're generally better off by leaving well enough alone and not taking the stand. After the
State rests, your case generally can't get any better but it sure can go down the drain fast.
You Need to Know if You do Decide to Take the Stand?
a conservative haircut the day before your testimony. Be clean and neat. Men should wear a suit, white shirt with a tie, and
dress shoes. Women should wear a high collared blouse and conservative skirt. Look your best. Sit up tall on the stand. Speak
up during your lawyer's direct-examination. Do the same during the prosecutor's cross-examination.
Face the Jurors: At key times in your testimony, turn to the jury and direct your answer
to them. For instance, if your lawyer asks, "Mr. Spencer, did you at any time pick up a firearm and shoot it repeatedly
at Mr. Burton?" Turn to the jury and look them in the eyes as you say, "No, I did not. I have never pointed a gun
at anyone and I would never shoot in anybody's direction." Such a performance can be very powerful indeed.
Take Your Time: Just because the prosecutor tries to rapid-fire questions
at you, think before you speak. You can only answer one at a time and you get no points for being faster than the prosecutor.
Slow down. Have this mindset: "Answer questions TO THE BEST OF YOUR ABILITY."
Guess: You don't have to know every answer. It is perfectly alright to answer, "I don't know." As an example:
Q. Was it pitch
A. I really don't remember. I do know what I saw. I can visualize it right now in my mind.
Q. How fast does a hollow point round travel from the muzzle of a .40 caliber Glock?
A. I really have no idea. He shot me in the leg first. Then I reacted and pulled out my weapon and fired at him in
Be Honest: Show the jury that you sincerely want to fully answer
all of the prosecutor's questions. You don't want to hold anything back and you want, above all else, to tell the truth.
Treat the Prosecutor just like You Treat Your Own Lawyer: It is normal
to field your lawyer's direct-examination questions with openness and in a friendly manner. When the prosecutor begins his
cross-exam defendants generally tend to become hostile. After all, he is the guy who is trying hard to put you away. Overcome
these feelings. Try to stay in-character when you answer your own lawyer and the adverse prosecutor. These are just questions.
See them as fair questions being aimed at determining the truth. You want to tell the truth and to have nothing but the truth
come out. Be happy to discuss the case with the prosecutor, but do it on your terms.
In summary, when you consider whether or not to take the stand to testify in your own case, the best advice is don't
do it! However, if you insist on your fundamental right to testify...then prepare, prepare and prepare some
more. Whatever you decide to do during the entire process that is your criminal trial, your focus should be on a
verdict of NOT GUILTY.
So, here's to the first day of the rest of your
For more helpful information on success strategies
for a person charged with a crime, contact
Ira Still, Esquire
Ira Still has been a criminal defense trial lawyer in Florida for over 30 years. He has successfully
represented clients on all categories of crimes and in all courts. Ira has had many, many jury trials and is well known
in Miami and Ft. Lauderdale as a very successful trial and appellate lawyer. He has argued death penalty collateral appeals
in the Florida Supreme Court and in various District Courts of Appeal. He has filed briefs in the United States Supreme
Court. Ira is also an author, speaker, teacher, mentor and coach.
© 2010. The Law Offices
of Ira Still