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If you’re a bird, I’m a bird: a note on clients testifying

July 3, 2018

 

 



One of our most cherished rights in America is the right to remain silent when charged with a crime.

 

You might wonder why this right is so critical. In short, the Brits used to compel defendants to explain their innocence. Americans are smarter than Brits because, as anyone who’s watched the news knows, pretty much any statement can be twisted into a damning headline. You’d need to be an expert spinster to sanitize and distill your “I didn’t do it” into an actual “I didn’t do it.” So instead, we just tell people they can plead “not guilty” and leave it at that.

The flip of the right to remain silent is a person’s absolute right to testify. This is where being a lawyer gets tricky. As a lawyer, I know that it can’t be held against you if you don’t testify. I also know that if you demand to testify against my advice, I can’t stop you. All I can do is tell you it’s a really stupid idea and offer to hold your beer while I watch you testify.

In the end, I’m a defense attorney who’s ride or die. If you demand to testify against my advice and succeed, I’ve failed in many ways. But I’ll have to respect the decision and do my absolute best to clean up your godawful mess because we’re in this together until the end.

As Gosling said, “If you’re a bird, I’m a bird.”

You might wonder why lawyers usually don't want their clients testifying. Here’s a few reasons:

1. If all you want to say is, “I didn’t do it,” then you already did that by pleading not guilty. Seriously, what are you adding by testifying?


2. As soon as you open your mouth, 99% of your appeal rights are down the toilet. The judge simply has to express that he doesn’t believe you and any appellate court will say, “The trial judge was best situated to observe the defendant’s demeanor and assess his veracity.” That line just means that appellate judges can’t go back in time to watch you testify and decide for themselves if you were lying. So who are they to reverse your conviction? A bunch of linear time bound nobodies who won’t do it, that’s who.


3. By testifying, you’re opening yourself up to cross-examination. It’s pretty awesome declaring from the mountaintops that you didn’t do it, but as soon as you’re done, the prosecutor is going to make you explain all of the evidence against you. Prosecutors are trained for this and they live for this. You might think you have an excellent explanation for all of their evidence, and maybe you do, but as the wise saying in politics goes, “If you’re explaining, you’re losing.”


4. Usually, any explanation you want to give can be conveyed by the defense attorney during argument. See how easy that is?

There are many situations where having a client testify can be a wonderful and necessary thing. There’s plenty of “he said/she said” cases where the client needs to give a version that undercuts the other side’s version. Also in jury trials, jurors usually want to see you testify. They aren’t savvy to the whole “right to remain silent” thing. They typically say, “Gee, if that were me I’d definitely want to testify and say I didn’t do it…this guy must’ve done it.”

In the end, you should probably follow the advice of your lawyer. I’ll be honest, I’ve had a couple of clients demand to testify against my advice and do a wonderful job resulting in an acquittal. It happens, but not that often. If you have concerns about why you aren’t testifying, definitely make sure your lawyer thoroughly explains their reasoning. After that discussion, if you really, really think you’re a bird and decide to jump off a cliff by demanding to testify, make sure you have a ride or die lawyer jumping with you. 

 

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