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Should a Criminal Defendant Testify at Trial?

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A criminal defendant has the right to testify or not to testify in any criminal case. If a defendant chooses not to testify, that fact cannot be held against the defendant, and cannot be used to infer guilt. 

But even though a defendant can testify, that doesn’t mean that it’s a good idea.  

Innocent Until Proven Guilty

Criminal defendants are presumed innocent until proven guilty. This means that the prosecution must prove, beyond a reasonable doubt, that the defendant is guilty. This is often accomplished by calling police officers and other witnesses to testify to the various elements of the crime. The defendant’s testimony adds very little in terms of finding the defendant not guilty. 

Instead, the best defense is often to discredit the prosecution’s case by calling into question the police investigation, the accuser’s motivation, and any inconsistencies to show that the prosecution has not proven its case beyond a reasonable doubt. 

The Defendant’s Testimony Can Bring In Evidence of Other Bad Acts

Criminal defense lawyers generally advise our clients not to testify at trial. Too many things can go wrong. 

When you testify at trial in a criminal case you open yourself up to having any prior bad acts introduced as evidence. These misdeeds, while unrelated to the crime a defendant is accused of committing, can be used by the jury to infer that the defendant committed the crime in question.  

A Defendant Has the Right NOT to Testify

In a criminal trial the defendant has a constitutional right not to testify, and the court must instruct the jury that this choice cannot be held against the defendant, cannot be used to infer that the defendant is guilty, and that the defendant is presumed innocent until proven guilty regardless of whether he or she testifies. 

For me to recommend that my client testifies, there needs to be a very compelling reason, more than simply to explain to the jury that the defendant is innocent, before I would recommend that a defendant testify in his own defense. The risk that something could go wrong is simply too great.

Why a Criminal Defendant Should Not Testify

A criminal trial is incredibly stressful, especially with so much on the line. Many people do not handle the stress well and can become agitated, irritable, or nervous. Even if they are not guilty, the jury might wrongfully interpret these as signs of guilt and use them to enter a guilty verdict. 

Jurors often place unfounded emphasis on these factors, ignoring the fact that an innocent criminal defendant who is well-prepared can be nervous or become confused, which may cause them to respond poorly to questions, especially on cross examination. 

Unlike police officers, who are trained to testify and may have testified hundreds of times over the course of a career, most criminal defendants have little experience testifying. 

A police officer knows what to expect, how to engage with the jury, how to answer questions, when not to answer a question, and how to withstand a difficult cross-examination. 

Cross-examinations can be very difficult, especially with a zealous prosecutor who is trained to draw out information. The questions can be confusing, and even a small misstep can be exploited to make an otherwise innocent defendant appear guilty. 

Most defendants have very little exposure to the criminal justice system, let alone experience testifying in a criminal trial. It is impossible to know how a defendant will perform on cross-examination, even with the most thorough preparation. It is easy to become confused by an artfully worded question, or a question that the defendant did not fully understand. These little mistakes can quickly add up to discredit the defendant, in which case the defendant’s testimony hurts the case more than it helps. 

The defendant’s testimony can muddy the waters by adding the defendant’s version of events to the case. Instead of focusing on inaccuracies in the prosecution’s case, the jury might be tempted to assess whether the defendant is telling the truth. This turns the case into a question of credibility, which can often end poorly for someone accused of a crime, who has motive to lie, and has little experience testifying at trial. This changes the dynamic of a criminal trial as they jury weighs the prosecution’s case against the defendant’s version of events, when in actuality the defendant has nothing to prove.    

It is ultimately the defendant’s decision whether or not testify, but it is my job to advise my clients whether or not they should testify. And in all but a few cases, I strongly recommend that they do not.

Fremstad Law - Moving You Forward From a Criminal Charge

At Fremstad Law, our experienced criminal defense lawyers are here to help you move forward from a criminal charge. We work hard to protect the presumption of innocence, and to create a compelling defense that is intended to secure a not guilty verdict, have the case dismissed, and provide leverage to maximize the chances of a reduced charge. 

If you are facing criminal charges in North Dakota, criminal defense lawyer Nick Thornton is here to help. Contact the experienced criminal defense lawyers at Fremstad Law today by calling (701) 478-7620 or emailing