Presumption of Innocence: The Decision Not To Testify

All my career, both as former prosecutor and current defense attorney, I have heard people say, "If the defendant is really innocent, why didn't he take the witness stand?" If you were chosen to be a juror in a criminal case, could you follow a judge's instructions that you must not hold it against the defendant if he or she chose not to testify?

The 5th Amendment essentially protects each of us against having to testify and perhaps (unintentionally) incriminating ourselves. Also, judges always instruct juries that each defendant is presumed to be innocent and that the defendant does not have to testify. But like a lot of defense lawyers, I live in the real world and I am always afraid that some jurors will overlook the judge's instructions and hold it against my client if he decides not to take the witness stand.

As a result, I always carefully discuss the pros and cons with my client before my client decides whether or not to take the stand.

It is important to point out that there are many reasons, aside from any question as to guilt or innocence, as to why a defendant might choose not to testify. For example, some defendants might be innocent, but inarticulate. In other words, in this situation, the defendant and his attorney might be afraid that, if he testifies, an experienced prosecutor might be able to twist his words and make him look guilty. In other situations, while the defendant may be innocent, he may also have a bad temper. In that situation, the defendant and his defense lawyer may fear that the prosecutor may try to make him look guilty by making him lose his cool on the witness stand. Folks, these things can happen in the real world and in a real trial!

Each criminal case is different. And in each case, it is critical that a lawyer and client should carefully consider and discuss the client's decision about testifying. But it is also important to recognize the harsh reality that some jurors may simply hold it against the defendant if he or she exercises their Constitutional right not to testify.

What do you think? Would you be able to follow a judge's instructions? And please be honest: Would you hold it against a defendant who chose not to testify?