There is an inherent desire for anyone accused of committing a crime to defend himself by telling his own “story”. Innocent people charged with a crime want everyone to hear that they did not do it and they want those words to come out of their own mouth. People charged with crimes that exceed what they actually did want to explain to everyone what “really” happened. When preparing a criminal case most of my clients ask me “Is it a good idea to testify at my criminal trial?”. The answer varies from case to case. This post examines some of the thoughts criminal defense lawyers have on this subject.
How Will You Hold Up to the Pressures of Testifying Before a Jury?
Getting up in front of people and talking is never easy unless it is something that you do for a living. Even then, testifying in front of a jury is different from speaking at a seminar or a professional conference. When you are being prosecuted you can’t help but wonder what these strangers sitting in the jury box are thinking about you. No matter what the crime, sex offenses, drunk driving, domestic assault and battery, you will feel self conscious. So, one thing we evaluate is how you will hold up to the rigors of the district attorney’s cross-examination. Mock cross-examinations help with this process. We often have one of our lawyers put our client through a simulated trial situation to see how convincing and sincere our client comes across. I can usually determine fairly quickly whether my client will make a good witness on his or her behalf by simply walking through a series of questions I am sure the prosecutor will ask.
How Can I Be Sure I Will Make a Good Witness on my Behalf?
This is a discussion you will have to have with your lawyer. It is your absolute right, guaranteed by the constitution to take the stand and testify at your trial. But your lawyer might caution you against doing so. Here are some things that juries are turned off by:
- Don’t try too hard to convince the jury that you are telling the truth. Excessive effort in this regard comes across as begging or pleading for mercy. Jurors are compelled by concise responses to a lawyer’s questions;
- Don’t validate the testimony of the prosecution witnesses. Here is what I mean by that using an OUI case as an example. Officer X might testify that you were driving erratically, crossing over the median divider lines three times, that he smelled alcohol on your breath when he pulled over, that you had trouble producing your driver’s license and that you failed the field sobriety tests. If you then try to make excuses for all of those actions you have just validated his testimony as truthful. “I was distracted by a bee in my car that caused me to drive erratically. I only had two beers. My driver’s license was stuck in my wallet and I was unable to properly do the FSTs as a result of a leg injury”. Guess, what you just did? You told the jury that Officer X was right. Don’t do this;
- Don’t look directly at the jury unless the person you are addressing is standing by them. When you have a normal conversation with someone you look them in them in the eye and speak to them directly. Why then would you do otherwise at trial? Some cops when asked questions by the district attorney look away from the prosecutor when answering and look directly at the jury. Who does that? No one. It looks stupid. Look at the person to whom you are speaking and maintain your normal conversational poise;
- Don’t over answer. During trial there are lulls where no one is speaking. Your lawyer or the district attorney might be looking at some notes or gathering documents to display to the jury. When this happens the temporary silence is unnerving. You just answered an important question. Now there is silence. Your mind starts to wander. And you think to yourself “that might not have gone well. Maybe I should add something else.” Don’t do it. Trust your lawyer and the process. If your lawyer thinks that something else should be added he will follow up with a question.
There are countless variable that go into the analysis of whether or not someone should testify at trial. Talk to your lawyer about this. If you want to consult with us please call 617-263-6800 or send us an email. We can help you.