Richardson, Richardson, & Campbell
A Defendant's Right to Testify
Although a defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, the defendant also has a constitutional right to testify at his or her trial for a criminal offense. The defendant's right to testify includes his or her right to present a defense.
After the prosecution has presented its witnesses and evidence against a defendant in a criminal trial, the defendant has a right to present witnesses and to testify. The defendant has control over the order in which he or she presents his or her evidence. The defendant most often presents defense witnesses in the order that chronologically develops his or her theory of the defense. The defendant may present his or her strongest witnesses at the beginning or at the end of his or her defense. The defendant normally testifies as the last witness.
Although a defendant has a fundamental right to present witnesses in his or her behalf, the defendant must comply with the rules of procedure and the rules of evidence in presenting his or her witnesses. The defendant cannot offer testimony that is incompetent, privileged, or otherwise inadmissible.
A defendant's right to present a defense includes the right to present evidence that someone else committed the crime with which the defendant has been accused. However, the defendant must show that there is a link between the crime and the person who is alleged to have committed the crime.
When a defendant presents witnesses on his or her behalf, the prosecution has an opportunity to cross-examine the witnesses. The prosecution is given the same latitude in cross-examination that the defendant is given in cross-examining the prosecution's witnesses. The prosecution may attempt to impeach the defendant's witnesses and may attempt to undermine the credibility of the defendant's witnesses. But, the prosecution is not entitled to show the defendant's guilt by posing questions that have no basis in fact or that lead to the introduction of inadmissible evidence.
If a defendant exercises his or her right to testify, the prosecution may not arbitrarily limit the evidence that is offered by the defendant. The defendant is treated as any other witness when he or she testifies. The prosecution has a right to cross-examine the defendant if the defendant exercises his or her right to testify. The defendant may be contradicted, impeached, discredited, or attacked by the prosecution. However, the prosecution cannot ask highly prejudicial questions of the defendant if the questions are intended to inflame the minds of a jury.
Whether a defendant will testify at his or her trial is normally the most important decision in the trial. Although a trial court will instruct a jury that they may not consider the defendant's failure to testify, most jurors want to hear the defendant's side of a case and often wonder why the defendant did not testify. If the defendant chooses to testify, the jurors are given an opportunity to observe the defendant and to determine whether the defendant is sincere and credible as a witness. Because of the importance of the defendant's testimony, the defendant must be well prepared and must make a proper impression on the jury.