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How do you feel about a defence lawyer asking defendant to take the stand?

San Bernardino, CA |
Filed under: Criminal defense

" No evidence" just four witnesses, and they have four different accounts of what happened the night in question. It was late everyone was drinking or high. The incident was in the middle of a small lot. everyone should have seen the same thing. But two stated they were the only one in that lot because the were together, and even their version was way off of what each other witnessed. And the other two just said they each were out there alone, but different also. should we take a chance on the jury or take the stand. I know everything in his past could come up. but he's never did anything violent, just stupid.

Attorney Answers 6


  1. Best answer

    Your defense attorney is in the best position to advise you on this, but my own opinion regarding a defendant taking the stand in general, is: 1) why do it? You have the right to the presumption of innocence, why give it up? A jury fundamentally is suspicious of the defendant's words; 2) with good preparation by the defense attorney, a jury can be made to appreciate the presumption of innocence and will not hold the defendant's silence against him (the foundation must be laid from the earliest point and reinforced throughout the trial); 3) more cases are won with the defendant not testifying than testifying; 4) by testifying the defendant puts his prior criminal history in issue and subjects himself to cross examination - why do that when you don't have to?


  2. Only the defendant's attorney can answer that question. And only the defendant can make the decision as to whether or not to testify.

    Any statements I make in these forums (fora?) should not be taken as direct legal advice, merely informed guidance. This is true due to the anonymous nature of this venue, and the incomplete information which is invariably provided by the questions. It is imperative that you consult directly with an attorney regarding your specific situation before acting on or relying on anything represented here. Period.


  3. "Stupid" behavior can be construed by a jury as culpable. His counsel is the only one who can evaluate the facts and decide whether the potential detriment of taking the stand is worth the gamble.


  4. Only the attorney familiar with the evidence and who has cross examined the prosecution witnesses is in the best position to answer that question.


  5. You didn't say what the defendant would testify about. If the witness is convincing, and if it testifies that he was somewhere else and can prove it by his testimony, What if the witness can prove he was out of town when the incident occurred? What if he is the ONLY one who can give evidence on this?

    You didn't say what the defendant was going to testify about.

    Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.


  6. It is true that juries often like to hear from the defendant themself when determining guilt or innocence, as it is the defendant’s liberty that “hangs in the balance”. But, this is also a "two- edged sword", as a trial can either be won or lost; all depending on how the defendant's testimony comes across and the impression the defendant makes on the jury. Equally important is the actual defense strategy that the trial attorney has chosen to follow. As a person is presumed innocent UNTIL proven guilty, the defense may be that the prosecution does not have sufficient evidence to prove guilt "beyond a reasonable doubt". In such cases, a defendant will NOT testify as the "burden" of proving guilt is solely on the prosecution as there is no reason for a defendant to testify IF the prosecution cannot meet its burden of proof. So, you must speak candidly with the trial lawyer defending the case and determine what "type" of defense strategy is being used. Next, discuss with the trial attorney if the defendant's taking the stand is in the proper course action to follow focusing on what possible consequences may result IF the defendant does NOT make a good impression on the jury weighed against how strong of a case the prosecution has against the defendant.

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