At every criminal trial the defense has to decide whether or not the defendant should testify. Many criminal defense attorneys take the position the defendant should not testify unless it's a must. But most juries want to hear the defendant testify. For this reason I have a presumption that the defendant testifies.
Part of the fear of putting the defendant on the stand is the fear the prosecutor will tear the defendant apart on cross examination. In my experience if the defendant can articulate a coherent story, then the prosecutor is usually not able to break down the defendant during cross-examination, so this is not a concern of mine. There are a number of reasons that would overcome the presumption that the defendant testifies.
EXAMPLES OF OVERCOMING THE PRESUMPTION THE DEFENDANT TESTIFIES
- There isn’t a coherent defense.
- The state has already introduced the defendant's side of the story into evidence.
- The defendant’s testimony is irrelevant to his defense.
- The defendant has trouble speaking, or doesn’t have the mental capacity to give a coherent story.
- The defense attorney believes he has already won the case, and does not want the defendant to potentially lose the case for him.
- The defendant has too many admissible convictions.
