Section 6.18 Should Defendant Testify?

• Library: Criminal Practice 2012 Supp

C. (§6.18) Should Defendant Testify?

Under no circumstances should the defendant be called to the witness stand and examined during a preliminary hearing. There is no advantage to subjecting the defendant to examination at this stage in the proceedings or in giving the prosecution an opportunity to discover the defendant’s case. If the issue of probable cause to hold the defendant for the charge rests solely on a question of credibility, the associate circuit judge will almost always bind the case over to the circuit court anyway; therefore, there is no reason to subject the defendant to cross-examination at this time. Counsel should remember that the judge is not acting as the ultimate fact-finder necessarily, but is instead deciding the legal question of probable cause. Once the defendant is called to testify and subjected to cross-examination by the prosecution, the testimony may be recorded and preserved, thereby limiting the defendant at trial as to testimonial issues. Should the defendant testify at trial, any prior inconsistent statements made at the preliminary hearing could be used as substantive evidence. Section 491.074, RSMo 2000. The concerns with defendant testimony at the preliminary hearing exist regardless of whether a recording or verbatim transcript is made of the preliminary hearing. Statements made by a defendant fall within a clear exception to the hearsay rule; witnesses can be called at trial as to their memory of the defendant’s statements...