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Reason for a motion for a new trial or an appeal for misdemeanor.

Los Angeles, CA |

I had a trial and lost. I wanted to testify but my lawyer did not let me. the judge did not even ask me if I wanted to testify or inform me of my right to testify. Is this a reason for a motion for a new trial to be granted?

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Attorney answers 4

Posted

Attorney did not let you? or did they "advise" you not to.. The judge does not need to ask you if you want to testify. You can always file the appeal, but realistically I doubt it will be granted. Good luck. There may be other issues for appeal that an appellate attorney can review.

Posted

As with Mr. Allen, I'd note that "did not let me" is a very different statement than "told me I'd better not or else..." or any number of other ways that might have been phrased. The details of exactly how and what was said in that encounter, or series of encounters, are exceptionally important. Bear in mind it is always difficult to win an appeal, and misdemeanor appeals are no different-- except maybe they're tougher to win.
If your attorney really, truly forbade you from testifying, and prevented you from doing so, you should contact an appellate attorney right away to discuss it further. But bear in mind that simply doing everything in his or her power to discourage you from testifying is not the same thing.
Finally: as a general rule, although there are certainly exceptions, it is a very rare case where it is a good idea for a defendant to testify. I don't know the details of your situation (and you shouldn't share them here), but the odds are high that any given attorney would have advised you not to testify just like your lawyer did. Sorry to be a wet blanket about that, but it's true: the likelihood is that your attorney was giving you sound advise.

Any answer provided on Avvo, including this one, is a general answer about a legal question, not specific legal advice. Different lawyers may analyze this or any other matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I licensed in the state of California and the Central District of the Ninth Circuit.

Posted

It is the client's right to testify or not despite what the attorney's view happen to be. I always "make a record" when the client does not testify (out of the presence of the jury) in which the client acknowledges the right and the decision not to testify, to avoid this very situation. The lawyer is usually right in recommending to a client as to whether or not he/she should testify, but the client can disagree. If you were not advised of your right to testify and can prove it, it can be a basis for an appeal, but very unlikely to lead to a new trial.

Posted

What do you mean by "my lawyer did not let me"? If your lawyer talked you out of it, or gave you advice that your chances were better without testifying -- that is unlikely to be fruitful grounds for appeal.

On the other hand, if you stated a desire to testify to your attorney and he did not call you as a witness despite your wishes -- that could be an appeal issue. You see that issue raised on appeal but it is rarely successful. Just as a warning.

You'll probably need a new lawyer for the appeal. Good luck.

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