Last Updated on: 20th October 2023, 09:16 am

Should You Testify in Your Own Federal Criminal Defense Case? Pros and Cons

If you’ve been charged with a federal crime, one of the biggest decisions you’ll have to make is whether or not to testify in your own defense. There are good arguments on both sides of this issue, so it’s important to carefully weigh the pros and cons with your attorney.

Why You Might Want to Testify

Here are some potential benefits of taking the witness stand in your own federal criminal case:

• You get to tell your side of the story – If you don’t testify, the jury only hears the prosecutor’s version of events. Testifying allows you to share your perspective and contradict the prosecution’s allegations.
• It humanizes you – Jurors want to hear directly from the defendant. Testifying allows them to see you as a real person rather than just the accused.
• You can explain away some evidence – Testifying gives you the chance to provide context or alternative explanations for damaging evidence presented by the prosecution.
• It shows you have nothing to hide – Refusing to testify can sometimes come across as suspicious, like you’re hiding something. Testifying demonstrates you aren’t afraid to answer hard questions.
• It allows your lawyer to question you – Your own lawyer can ask you questions that give you the opportunity to emphasize the most important parts of your defense.

The core benefit of testifying is that it’s your best chance to tell your side of the story and respond to the government’s allegations directly. Rather than sitting mute and letting the prosecution define you, testifying may be your best shot at beating the charges.

Why You Might Not Want to Testify

However, there are also significant risks involved in testifying in your own federal criminal defense case:

• The prosecution can cross-examine you – The prosecutor will get to grill you on the stand about any inconsistencies, lies, or problems in your story.
• You might say something incriminating – An innocent misstatement could be used against you. Testifying opens the door to perjury charges if you mess up.
• You may not make a good witness – If you come across as evasive, combative or not credible on the stand, it could tank your case.
• It shifts the burden to you – Rather than the prosecution having to prove their case, now you have to positively prove your innocence.
• Your past criminal record can come in – If you have prior convictions, the jury may hear about them only if you choose to testify.

The bottom line danger of testifying is that it opens you up to a brutal cross-examination by a seasoned federal prosecutor, which can often do more harm than good. They may catch you in lies or pick your story apart in a way that craters your credibility.

When Is Testifying More Likely to Help?

While the decision to testify is highly case-specific, here are some situations where it may help more than hurt:

• You have an innocent explanation – If you have a compelling story that explains away the charges, testifying could be wise.
• Your credibility is critical – If the case boils down to your word vs. the word of one prosecution witness, your testimony may tip the scales.
• The evidence isn’t rock solid – If the prosecution’s case hinges on circumstantial evidence or questionable witnesses, your testimony might create reasonable doubt.
• You have an alibi – If you have a verifiable alibi for the crime, testifying can lock it in.
• You have no criminal record – If you have a clean record, you don’t have to worry about past convictions coming in after you testify.

The overarching theme is that testifying tends to help more if you have a strong, credible story to tell that undercuts the prosecution’s theory of the case. But it’s a huge gamble if their case is already solid without your testimony.

When Is Testifying More Likely to Hurt?

On the other hand, here are some situations where the risks tend to outweigh the rewards of testifying:

• You have a criminal record – Any prior convictions will be fair game for prosecutors to use against you if you testify.
• You have something major to hide – If you have to lie about something big on the stand, it’s usually best not to testify.
• The evidence strongly incriminates you – If the prosecution has rock solid evidence against you, testifying likely can’t overcome it.
• You have a hot temper – If you are easily rattled or provoked, skilled prosecutors may use that against you.
• You make a bad witness – If you come across as inherently untrustworthy or dishonest, testifying could seal your fate.

The overall takeaway is that if the existing evidence already makes you look guilty, testifying will probably only make things worse. Unless you have an incredible story to tell, it’s usually best to exercise your right not to testify.

Consult Your Attorney

While you have the ultimate power to decide whether or not to testify in your federal criminal case, your defense lawyer’s advice should weigh heavily in your decision. Here are some important things for your attorney to consider:

• How strong is the prosecution’s existing case? What evidence do they have and where are the holes?
• What story can you credibly tell on the stand that counters the charges?
• What is your demeanor like? Can you stay cool under blistering cross-examination?
• What skeletons from your past might come back to haunt you?
• Is your case likely to hinge on your word against the testimony of prosecution witnesses?

Your attorney knows your case inside and out and can help realistically forecast how testifying is likely to play out. While they can’t force you to stay silent, failing to heed your lawyer’s advice on this issue is extremely risky.

Other Options

Testifying isn’t necessarily an all-or-nothing decision either. There are some alternatives your lawyer may suggest as well:

• Testify only about limited topics – You may be able to take the stand to testify about a particular part of the case, but invoke the Fifth Amendment for other dangerous areas.
• Save it for appeal – If you’re convicted, you can also consider taking the stand at sentencing to humanize yourself and avoid or reduce jail time.
• Submit an unsworn statement – In some cases, you may be able to make an unsworn statement to the jury about your story without being cross-examined.

While deciding whether to testify in your federal criminal case is extremely high stakes, talking through your options thoroughly with your defense lawyer can help you make the best choice.

The Bottom Line

There are compelling reasons on both sides of whether to testify in your own federal criminal defense case. While it gives you the chance to tell your side of the story directly, it also opens you up to potentially devastating cross-examination. Consider the specific circumstances carefully and heed the advice of your attorney to decide if the benefits outweigh the substantial risks.

References

Here are some resources with more information on the pros and cons of testifying in a federal criminal case:

• Should You Testify in Your Own Behalf at a Criminal Trial? – NOLO
• How Do I Know if I Should Testify? – Department of Justice
• Trump Weighs Risks of Testifying Before Jan. 6 Committee – New York Times
• To Take the Stand Or Not to Take the Stand – Lawyers.com