The Defendant's Decision Not to Testify

Publication year1990
CitationVol. 19 No. 8 Pg. 1589
19 Colo.Law. 1589
Colorado Lawyer

1990, August, Pg. 1589. The Defendant's Decision Not to Testify


Vol. 19, No. 8, Pg. 1589

The Defendant's Decision Not to Testify

by Robert J. Dieter

Adefendant's decision whether to take the stand is a crucial decision in every criminal trial. Criminal defendants have a constitutional right to testify(fn1) in their own behalf at trial. However, many, if not most, defendants instead choose to remain silent and do not testify in their defense.

In the past decade, the Colorado Supreme Court clarified the nature of the defendant's right to testify and imposed procedural duties on trial courts to ensure that criminal defendants who choose not to take the stand waive their right to testify voluntarily, knowingly and intelligently. This article briefly reviews the strategic and legal factors involved when advising a client about whether to testify. It also surveys the law that is applicable when a criminal defendant waives the right to testify and remains silent at trial.

The Decision Whether to Take the Stand

In addition to choice of plea and mode of trial, the decision whether to testify is one of the three matters which, although typically exercised after consultation with his lawyer, are within the exclusive discretion of the defendant.(fn2) As noted in the opinions discussed below, the fact that a trial court must ascertain from the defendant on the record that a decision not to testify is his alone does not relieve defense counsel of independently reviewing with the client his testimonial rights and the pros and cons of taking, or not taking, the stand.(fn3) Although pre-trial investigation and discovery aid this process, in some cases defense counsel may not be able to reach a decision and advise the client until the last stages of the trial. In fact, it is unconstitutional to restrict the defendant and his counsel in deciding (1) whether the defendant should take the stand or (2) at what point in the course of presenting his defense the decision whether to take the stand must be made.(fn4)

When advising a client whether to testify, defense counsel weighs the impact a silent defendant will have on the jury against the benefits and risks attendant to testifying.(fn5) On one hand, the defendant who testifies is able to put forth, in his own words, his version of the facts and to demonstrate his credibility as a witness. On the other hand, the defendant will be subject to the hazards of cross-examination and possible rebuttal by the prosecutor. Of course, defendants may have reasons for not testifying that have nothing to do with this balancing process, as is the case with defendants who decide not to testify because they "prefer to risk a finding of guilt rather than being required to incriminate others whom they either love or fear."(fn6)

By taking the stand, the defendant waives the privilege against self-incrimination and subjects himself to cross-examination like any other witness.(fn7) Therefore, defense counsel must investigate the client's background to assess how the defendant will withstand attack by the prosecutor and the impact of impeachment evidence, if admissible,(fn8) on the trier of fact.

The prosecutor cannot attack the defendant's character unless the defendant first testifies expressly about his general "law-abiding" nature or offers evidence of specific character traits pertinent to the charge or defense.(fn9) Nevertheless, the defendant's character for "truthfulness" will be subject to attack,(fn10) and so will his "credibility."(fn11) Moreover, a defendant prone to making sweeping assertions or denials can open the door to cross-examination or rebuttal about prior bad acts or similar transactions which (1) contradict his substantive direct testimony(fn12) or (2) in light of his direct, become relevant for some "other purpose" under C.R.E. 404(b) to refute, explain or disprove implications of his testimony.(fn13) Therefore, the defendant might broaden the range of relevancy of such evidence enabling the prosecutor to meet the substantive


criteria which otherwise would preclude its admission in the trial.(fn14) Finally, the defendant can be impeached with prior inconsistent statements,(fn15) and any constitutionally valid, final conviction which qualifies as a felony under Colorado's impeachment statute.(fn16)

Although defense counsel can take precautions to shape the direct examination, the scope of cross-examination is not necessarily limited to the focus of the direct.(fn17) Therefore, in addition to impeachment testimony, counsel should consider whether the defendant on cross-examination might merely corroborate the prosecution's witnesses and possibly distract the jury from weaknesses in the case against him. Also, a defendant on cross-examination runs the risk of providing evidence not otherwise known or available to the prosecution in its case-in-chief.

Furthermore, taking the stand may allow the prosecution to use the impeachment exception to the exclusionary rule. Thus, the prosecution may be able to introduce voluntary statements(fn18) and relevant physical evidence(fn19) which are damaging to the defense and are otherwise inadmissible in the trial. Likewise, if the defendant testifies, the prosecution will be able to impeach his trial testimony with his pre-arrest silence.(fn20)

In order for a defendant to make an informed decision whether to exercise his right to testify, he is entitled to an in limine ruling on the use of certain impeachment evidence by the prosecution if he does take the stand,(fn21) provided a request for a ruling is timely filed.(fn22) In addition, the relevancy of impeachment evidence must be clear, must not raise collateral issues, must be directed at the defendant's credibility, not his moral character,(fn23) and must be raised in good faith.(fn24)

In sum, the defendant is not just any witness to the jury, and the importance of his credibility cannot be overemphasized. If the defendant testifies, it can divert jurors' attention from weaknesses in the prosecution's case. Jurors may focus simply on whether they feel the defendant is believable and discount the presumption of innocence and the prosecution's burden of proof. As stated in the dissent in Lakeside v. Oregon:

Every trial lawyer knows that some truthful denials of guilt may be considered incredible by a jury---either because of their inherent improbability or because their explanation, under cross-examination, will reveal unfavorable facts about the witness or his...

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