Section 20.24 Should the Defendant Testify?

• Library: Criminal Practice 2012 Supp

XIII. (§20.24) Should the Defendant Testify?

With a few significant exceptions, the conduct of a criminal trial is no different than that of a civil trial. The plaintiff, who has the burden of proof in a civil case, puts on a case first. The state has that burden in a criminal trial and likewise goes first with its evidence. The defense has the right of cross-examination, and the state must have presented evidence that, if believed, will support a verdict of guilty in order to survive a motion for acquittal. The defendant has the option of offering evidence or resting at the close of the state’s case. The latter course is based on the proposition that the state has the burden of proving a defendant’s guilt beyond a reasonable doubt, and the defendant, of course, is presumed to be innocent. This presumption by itself will not result in a great many acquittals, so the defendant should plan on offering as much defensive evidence as can be mustered on the defendant’s behalf as long as it is kept in mind that there is a great risk in offering any evidence that may not be reasonably believable.

One of the principal differences in the trial of a civil case and the trial of a criminal case is based on constitutional provisions that a defendant cannot be compelled to give evidence against him- or herself. U.S. Const. amend. V; Mo. Const. art. I, § 19. Thus, the defendant has the absolute right to decide whether to testify. If the defendant chooses not to testify, the state is not permitted to comment on the defendant’s failure to personally deny the charges or to justify the defendant’s conduct.
Rule 27.05; § 546.270, RSMo 2000. This rule also applies to the defendant’s spouse. Any direct reference to the defendant’s failure to testify by the prosecuting attorney in closing argument to the jury may be ground for mistrial. Counsel should always be on alert for any suggestion by the prosecutor that tends to imply to the jury that they should in any way consider the defendant’s failure to testify. An immediate objection and motion for mistrial should be made outside the hearing of the jury because the motion will usually serve to emphasize what the prosecutor has been trying to get the jury to consider. A defendant who does not testify has the option of having the jury specifically instructed that no presumption of guilt or inferences of any kind may be drawn from the failure to testify. Rule 27.05(b).

Another exception to the general rule is the extent to which a defendant who does elect to testify may be cross-examined. The rule in criminal cases is that defendants may not be cross-examined on any subject that they did not go into on direct examination. Section 546.260, RSMo 2000. Counsel should be extremely cautious, however, in relying on this rule because the trial court is allowed a great deal of discretion in determining what has been opened up by the defendant’s testimony on direct examination.

Section 546.260 provides that the defendant “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case . . . .” The extent of permissible cross-examination of the defendant is discussed at length in State v. Beishir, 332 S.W.2d 898 (Mo. 1960). In

Beishir, the defendant, who was charged with armed robbery, took the stand but limited his testimony to:

· an admission to two prior convictions;

· a statement that he was elsewhere at the time the robbery was committed; and

· a denial that he was involved.

On cross-examination, the state was permitted, over an objection predicated solely on the ground that such matters were outside the scope of direct examination, to interrogate the defendant as to:

· his arrest in the company of two of his co-defendants;

· the search of his person and his possession of a pistol at the time of his arrest; and

· the finding of a pistol in the automobile in which he was seated at the time of his arrest.

In upholding the right of the state to conduct this cross-examination, the Supreme Court said:

It is well settled that a defendant who testifies may be impeached by proof of prior inconsistent statements.* * * Moreover, the statute “does not mean that a defendant can take the stand and in answer to one or two well-prepared interrogatories sweep away the whole structure of the state’s case, and then remain immune from a cross-examination on the issue thus tendered.” When “the questions put to him involved practically the whole issue tendered by the indictment, * * * he cannot be heard to complain that the state proceeded to cross-examine him on these matters. * * *...