Put bluntly, there’s a lot at stake in a criminal trial. Even when the charges are minor misdemeanors, Utah’s criminal penalties can still include months in jail and thousands of dollars in fines – not to mention the burdensome record which results from being convicted. When so much is riding on the line, defendants must take every possible step to avoid self-incrimination. So is it better to testify on your own behalf, or should you stay silent during trial? What are the positives and negatives of “pleading the Fifth” versus taking the stand? Salt Lake City criminal defense lawyer Darwin Overson explains some of the factors defendants should think about when it comes to giving testimony.
Pleading the Fifth: Can I Be Forced to Give Testimony?
Before we begin discussing the subject of whether criminal defendants should testify at their own trials, it’s crucial to emphasize the importance of carefully discussing all of your legal decisions with your attorney. Each criminal case is subject to its own unique set of circumstances, and making a single ill-advised remark – no matter how trivial or insignificant it may seem at the time – has the potential to negatively impact your case’s entire outcome. This article is intended as a general discussion of the possible pros and cons of testifying in your own defense, and should not be used as a substitute for consulting with a lawyer. If you’ve been charged with a crime in Utah, the attorneys of Overson Law LLC urge you to contact us immediately for help.
With that caveat in mind, let’s explore some of the general drawbacks and advantages of testifying versus remaining silent during your own criminal proceedings.
To begin with, it’s important for defendants to understand they are under no obligation to testify. Protection against self-incrimination is a Constitutional right under the Fifth Amendment, which states that “no person shall be… compelled in any criminal case to be a witness against himself.” In fact, this is where phrase “pleading the Fifth” comes from.
If a defendant should choose to invoke the Fifth Amendment and remain silent, the prosecutor cannot compel the defendant to testify against him- or herself. While courts can generally use subpoenas to force testimony in other situations, again the Fifth Amendment protects criminal defendants against being required to testify.
Pros and Cons of Testifying at Your Own Trial as a Criminal Defendant
We’ve established that defendants do not have to speak at their own trials – but should they? What is there to gain? What is there to lose? Let’s look at some of the pitfalls and benefits.
It is objectively true that jurors are instructed not to interpret the defendant’s silence, should he or she invoke the Fifth Amendment, as an admission of guilt. Jurors are instructed to consider only the evidence which is presented to them, and not to permit suspicions, gut feelings, or personal bias to color their perception of a defendant’s culpability.
Instructions are one matter, but the fact remains that jurors are human beings – not computers. For better or worse, a defendant’s decision to speak or remain silent can have negative or positive effects on the interpretation of the evidence at hand, depending on how the defendant conducts him- or herself.
Consider the following. For most people, the criminal courtroom is a harsh, surreal, and completely alien setting. Between the rigidity of court procedures, nerve-wracking interrogation by aggressive prosecutors, and the potential for being convicted, the stakes are incredibly high, and most defendants become extremely nervous. Even if a defendant is completely innocent, natural responses to stress – like stammering, blushing, or avoiding eye contact – can (unfairly) paint the defendant in a negative light.
At the same time, there can also be advantages to testifying. For example, cases can arise in which the defendant was the only witness to the alleged crime. In these instances, the defendant is the only person who can provide testimony about what really occurred. Certain defenses, such as acting under duress or acting in self-defense during an alleged assault, are contingent upon proving that the defendant took only the degree of action necessary to protect him- or herself from harm. The “reasonableness” of the defendant’s belief (and subsequent actions) must be determined by the court. Police reports are certainly not infallible, and in some cases, the defendant may be the only person who can provide clarification or context for a detail which would otherwise be misleading or downright inaccurate.
On the other hand, there’s also another disadvantage to testifying: it can shift the burden of proof, at least from a psychological standpoint. Of course, the burden of proof does not actually move away from the prosecutor – but once the defendant starts speaking, the emotional emphasis can move from the prosecutor proving guilt beyond a reasonable doubt, to the defendant proving his or her own credibility, which is unfair. Circling back to the issue of body language, a nervous defendant can make themselves appear guilty when they are really innocent, which a skilled prosecutor can then exploit. If a defendant accidentally or absent-mindedly confuses two names, dates, times, or places, it can appear as though he or she is simply lying and cannot keep the story straight.
Ultimately, every defendant (and every set of charges) is unique. Through personally working with you and studying the details of your case, your attorney alone is uniquely qualified to advise you with regard to how you should approach the matter of testimony. Only your lawyer will be able to determine which strategy would be the right fit for you, based on your personality and the details of your charges.
If you’ve been arrested for a felony or misdemeanor in Utah, you need an experienced Utah criminal defense lawyer on your side. To set up a free and completely confidential case evaluation, call attorney Darwin Overson right away at (801) 758-2287. Darwin handles charges related to homicide, sex crimes, drug offenses, and more.
