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Should I Testify?

If a criminal case cannot be worked out by way of a plea agreement, then the case proceeds to trial. At trial, a jury will decide whether the accused is guilty or not guilty. A jury bases their decision on the evidence presented. It is the prosecution’s job to prove the defendant guilty beyond a reasonable doubt.

Since it is the prosecutor’s burden of proof, the defense is not required to present any evidence of its own. The defense, of course, may put on witnesses and introduce exhibits if they want to. But there is no requirement that they do so.

In putting on a defense, the accused has the right to testify or not testify. The 5th Amendment to the U.S. Constitution states that no person shall be compelled to be a witness against themselves. That means that the prosecution cannot make you take the stand. It also means that you do not have to take the stand in presenting your own case, should you choose to do so.

There are benefits and detriments to defendants testifying. The same goes for not testifying.

What are the benefits? The benefits of the defendant testifying is that the jury gets to hear your side of the story. Humans naturally want to hear all sides of an issue and by testifying, the jury gets to hear from you.

The detriments? If you are a convicted felon, the jury will find out. You will be subject to cross-examination by the prosecutors, and if your story is not believable, then your own testimony might literally be the nail in your coffin.

Florida’s jury instructions tell jurors to treat a defendant’s testimony the same as they would for any other witness. You get no breaks just because you are the one on trial. Your testimony will be evaluated along the same lines as everyone else’s.

Now what about not testifying? The judge will instruct the jury that they cannot use your silence against you in deliberating. It is not a tacit admission of guilt not to testify. Many people don’t testify because they are nervous, they are not good public speakers, they have felony priors that they do not want the jury to find out about, or plain and simply – the state hasn’t proven its case so it is not necessary for the defendant to take the stand in his or her own defense.

Testifying or not testifying is your decision and your decision alone. Despite the advice of your attorney, only you can decide whether or not you will testify.