Should You Take the Stand in Your Texas Criminal Case?

If you are facing a criminal charge, you may have questions and concerns about whether or not you should take the stand, and you’re wise to do so. The fact is that there is no one-size-fits-all answer to this question. In the end, this decision must be made on a case-by-case basis that takes all the unique circumstances into careful consideration.

One of the most important steps that anyone who is facing a criminal charge can take is reaching out for the skilled legal guidance of an experienced Round Rock criminal defense attorney early in the process.

The Fifth Amendment

The Fifth Amendment of the U.S. Constitution affords all of us the right not to bear witness against ourselves, and this includes when you’re facing a jury trial. No one can force you to testify during your own criminal case, and this includes the prosecutor, the judge, and your own criminal defense attorney.

While your attorney may have a strong opinion about whether or not you should testify, the decision is ultimately up to you. Working closely with your trusted attorney and taking their recommendations seriously, however, is always well advised.

The point of criminal trials is for the prosecution to attempt to convince the jury beyond a reasonable doubt that the defendant is guilty of the crime they’re charged with. And there is no burden on you – although your attorney will build your strongest defense and will fiercely advocate for a not guilty verdict.

There is no legal reason, however, for you to take the stand. Instead, doing so is a matter of legal strategy, and while sometimes it’s advised, there are many other times when it is not.

Your Feelings about Testifying

If you choose to testify, you may do so because you want the chance to share your version of events. The flip side of this is that you also set yourself up to be cross-examined by the prosecution, and you can expect them to come at you with as much force as they can muster. To begin, they’ll attempt to tarnish your overall credibility, which helps to diminish the impact of everything you say.

If you do choose to testify, it’s important to be well prepared. Your skilled criminal defense attorney will carefully go over all the following with you prior to testifying:

How to keep your cool on the witness stand
How to overcome the jitters you’re likely to feel when you get up there
How to handle your cross-examination
How to stay focused on the primary issues at hand

Should You Testify?

Not only is every criminal charge unique, but so too is every jury, every judge, and every prosecutor. In other words, there are a lot of variables involved when it comes to determining whether or not you should testify.

An important point to keep in mind is that your dedicated criminal defense attorney has considerable experience with each of these factors, and their guidance can prove invaluable.

Jury Instructions

You have the constitutional right not to testify at your trial, and the jury must be instructed not to read anything into your decision not to. You have been charged with a crime, but you are presumed innocent unless your guilt is proven beyond a reasonable doubt by the prosecution. For your part, you don’t have to prove your innocence, produce any evidence in support of your innocence, or do anything at all – including testifying.

Ultimately, the jury will be instructed not to draw any inference regarding your decision not to testify – if that is the decision you make. The sole burden lies with the state, and that is proving your guilt beyond a reasonable doubt. If the prosecution fails to meet this burden, they must acquit you.

Regardless of jury instructions and your constitutional rights, however, some jurists have a very difficult time letting go of their biases, and one of the strongest is that anyone who doesn’t take the stand in their own case chooses not to do so because they’re guilty.

By taking the stand, you have the opportunity to generate an empathetic response from the jury and to dispel any lingering bias about defendants who don’t take the stand. Whether this applies in your situation and whether it is worth the risk involved must be determined in accordance with the circumstances of your unique case.

The Opportunity to Correct the Record

Another reason that you may decide to take the stand is because you have a compelling argument in defense of your innocence, which allows you to put your own personal stamp on the evidence and can be compelling enough to create reasonable doubt in the jury or to convince the jury of your outright innocence.

Taking the stand on your own behalf allows you to correct the record as it stands. The truth is that the police handle a lot of cases, and being human, they are as prone to mistakes as anyone else is. As such, their reports aren’t always accurate.

For example, if you’re accused of assaulting someone at a party, but the record fails to include that the guy you hit came at you first with a bottle in hand – which is a form of aggravated assault – the jury hasn’t heard the whole story, and your action may ultimately be interpreted as self-defense or as disorderly conduct.

The Downside of Taking the Stand in Your Own Defense

In the movies, defendants who take the stand often slip up and reveal something about their cases that they were attempting to keep hidden. Life, however, doesn’t imitate art in this way. If you do testify in your own case, it will only be after you’ve gone over and over the facts with your attorney, which means you’re not going to get up there and start blabbing.

Nevertheless, there are some definite cons when it comes to taking the stand that you should be well aware of.

Cross-Examination

When you take the stand, you open yourself up to cross-examination by the prosecution, and when prosecutors question witnesses on cross-exam, they’re allowed more leeway to become confrontational than when they’re asking direct questions of witnesses.

The prosecuting attorney who cross-examines you will not only challenge your version of the facts but also your credibility. Even when you stand by every word you testified to and know it to be true, it can be difficult to maintain your composure when you’re being grilled by an aggressive prosecutor.

Juries Are Unpredictable

The jury selection process – or voir dire – is designed to allow both the defense and the prosecution the opportunity to weed out any jurists who potentially have an agenda. In the end, jurists can be very unpredictable, and it’s nearly impossible to know what might cause one to form an instant opinion about you and to allow that opinion to guide their decision-making.

Testifying Can Shift the Jury’s Perception Regarding the Burden of Proof

Remember how we mentioned that failing to take the stand can leave jurists with a bias regarding your guilt – because why wouldn’t you testify if you were innocent? Well, juries can also get the wrong idea when defendants take the stand.

The most common is that, somehow, the burden of proof has shifted from the prosecution to you – as the defendant. Once you take the stand, they reason, you have the burden of proving your innocence. While this isn’t how the law works, biases like these can be very difficult to dispel.

You Won’t Be Pleading the Fifth on the Stand

When you plead the Fifth, you invoke your Fifth Amendment right not to incriminate yourself. But if you choose to testify in your own trial, you waive this right. Refusing to testify is the mechanism for invoking your Fifth Amendment rights in your own trial.

When you plead the Fifth in this capacity, it means you won’t be testifying – because you are availing yourself of your right not to incriminate yourself.

What Kind of Witness Will You Make?

A separate matter from everything else is the kind of witness you will make on the stand. Some people are naturally cool under pressure, while others are quick to anger. Some people are smooth talkers, while others trip over their words and can come off sounding unsure – or even as if they’re lying – in the process.

Some people also come off as more caring and warm than others, and if the jury pegs you as someone who is cold and unfeeling, it can harm your case. Sometimes, guilty defendants make a better impression than innocent defendants because it’s tougher to surprise them, which can translate to a steady quality. In the end, the kind of witness you will make is important.

To make things even more complicated, it’s also important to note that the jury will be checking you out from the get-go – even if you don’t testify. If you or your attorney gets the sense that they are uncomfortable with you – or that they openly dislike you – taking the stand as a means of rebutting this snap decision may be advised. All told, it’s complicated.

Eyewitness Testimony

If there is an eyewitness who claims to have seen you do what you are accused of or who claims to have seen you doing something incriminating in relation to the charge against you, it can feel very damaging to the strength of your case and may motivate you to testify in an attempt to refute their testimony.

The fact is, however, that eyewitnesses are often incorrect, and there is a significant amount of science backing this up. Further, your defense attorney will be cross-examining any eyewitnesses about what actually happened, about what they actually saw, and about why their testimony may not be accurate. Common reasons include:

The eyewitness may not have had enough time, enough light, a good enough view, or the opportunity to get a good look at what they’re testifying that they saw in the moment
The stress of the event may have blurred the eyewitness’s perceptions, which can make their testimony unreliable.
The eyewitness may be motivated to lie.

If cross-examining the eyewitness fails to tip the balance in your favor, your attorney may advise you to testify as a means of rebuttal, but it will depend upon the circumstances as a whole.

Preparing to Take the Stand

You don’t have to take the stand, and it may not be advised, but if you choose to or it becomes clear that doing so may be to your advantage, the good news is that you will be well prepared to testify. Your savvy criminal defense attorney will put you through your paces well before you head up to the stand. The process involves steps like the following:

Performing dry runs in which your testimony is taped and carefully reviewed
Peppering you with the kind of questions that the prosecution is likely to ask and doing it over and over again until you’re comfortable with your answers and the process
Doing what it takes to ensure that you have the confidence to take the stand and to testify clearly, accurately, and truthfully
Helping you fight the urge to explain things rather than simply answer the questions put to you directly – when you start explaining, you provide the prosecution with statements that they will attempt to use against you

An Experienced Round Rock Criminal Defense Attorney Is Here to Help

Brett Pritchard at The Law Office of Brett H. Pritchard is a trusted Round Rock criminal defense attorney who dedicates his impressive practice to zealously advocating in defense of his clients, and he welcomes the opportunity to also help you.

To learn more about what we can do for you, please don’t wait to contact or call us at 254-781-4222 and schedule your free consultation today.