First of all, it is your decision to testify, but it is an important decision and you need to understand how your testifying could hurt the case.
You can testify if you want too, you do not have to testify if you do not want too, but only you make the decision. The prosecutor cannot call you as a witness.
If you do not testify, there are rules to protect you and one of those rules is that the prosecutor cannot comment on your failure to testify. You have a right against self incrimination, which means he cannot comment on your failing to take the stand.
If you cannot testify truthfully, do not get on the stand. Assume you are going to get nailed. You are going to get beaten up by the cross examination, you are going to make a mistake, you are going to get caught in your own lies.
You should be worried about if you had done untruthful things in the past, you should worry about whether or not you have been convicted of other crimes.
What is in your background that may or may not be used against you when you are cross examined? If you have a record of convictions, you know they are going to throw that at you.
So since your 18th birthday, when you were represented by a counsel, have you ever been convicted of a crime?
Yes.
Speak up, I did not hear you.
Yes!
Yes, you have been convicted of crime?
Yes.
What were you convicted of?
Burglary!
Speak up, sir, I did not hear you.
Burglary!
Burglary! You were previously convicted of burglary?
If you have a record of bad conduct that somehow is going to get in under the rules of evidence—that is going to be used against you!
They are not to convict you of this burglary because you did six other burglaries, those are merely to affect your credibility, but you and I were not born yesterday. The jury is going to go back in that room and say, “He was convicted of burglary six times before.” I bet he did this one.
Those are big chances to take.
On the other hand, the best person to put the story forward as to what happened is certain kinds of cases maybe you and there are those cases where the jury wants to hear from you.
There have been a number of very high profile criminal cases where there have been acquittals, where the defendants did not take the stand and there have been lower profile that you never hear about.
There will be always jurors who believe that if you are not testifying, you are guilty! You have to ask yourself the question, could the harm of my being questioned outweigh the harm of my being silent.
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