top of page

Constitional Issues

Right To Testify - Or Not

[Offenses index] [Home] [Book an appointment]

The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.


A person accused of a criminal offense has a constitutional right to choose whether or not to provide testimony in their own defense at their trial. It is an essential component of the legal system that protects the principle of individual autonomy and ensures a fair and just trial process.


This right is grounded in the presumption of innocence, which places the burden of proof on the prosecution to establish guilt beyond a reasonable doubt. The accused is under no obligation to testify, and their silence cannot be used against them as an indication of guilt. This principle, known as the right to remain silent, safeguards the accused from being coerced or compelled to incriminate themselves. That coercion can also work the other way.

In a recent case in Maine, a criminal defense lawyer told a client in no uncertain terms that he was not going to testify and bullied the client into not doing so. That was an error, since it was the client’s choice and their ultimate decision. A lawyer’s role is as a wise adviser, and the client is the boss. Clients decide on important points, such as whether to testify. Any lawyer who forgets that risks malpractice. They also should not be your lawyer.

So, the decision to testify or not rests solely with the defendant, in consultation with their legal counsel. While some defendants may choose to testify in order to present their side of the story, challenge evidence, or establish an alibi, others may opt not to testify, relying on the prosecution's burden to meet the required standard of proof. The choice is deeply personal and can depend on various factors such as the strength of the evidence, potential risks, and the advice of their attorney. Often in self-defense cases there is little choice but to testify to give their version of what happened.


When a defendant chooses to give evidence, they are subject to rigorous cross-examination by the prosecutor. They will question the credibility and veracity of the defendant's testimony. Some past convictions may be used against a defendant at that point, when they otherwise would not be heard by a jury. This is one of the many factors to consider. Sometimes knowing the right thing to do is an impossible choice, particularly a defendant with a long criminal history. They may have pleaded, and be, guilty of past offenses but not guilty of the one they face. Sometimes prosecutors dealing with multiple cases against one person may prosecute a felony first to get the conviction so that felony can be used against the defendant later in another case during cross examination.


The right to silence cannot be used against a defendant - and that often crops up in closing arguments by a prosecutor. This is where errors warranting reversal of a conviction often occur. A silent defendant cannot be more severely punished by a judge by not giving evidence at trial either. When a judge makes that explicit, it will be grounds for a resentencing on appeal.


Overall, the right to testify at a criminal trial or not is a fundamental aspect of due process in constitutional law and protects the accused from being compelled to incriminate themselves. The burden of proof always remains with the prosecution - at least in theory. This is because it is impossible to prove a negative (that someone did not do something) since no evidence of what didn’t happen can exist. It seems obvious, but it is often forgotten.


That said, there is law in theory and law in practice. It is often the case that jurors will struggle with the concept that it is the government’s burden and that a defendant will simply not want to testify. They may consider that silence - even subconsciously - as an indicator of guilt in their internal deliberations, even if not expressed in the jury room. They should not, but some will. It is important to try to find those people in the selection process and exclude them from the jury. However, as there is not attorney-led but judge-led jury selection in Maine, that is especially difficult.

bottom of page