Weighing the high stakes decision of a defendant taking the stand in a criminal trial

In the past few criminal defense updates, Scaring & Scaringi P.C. attorney Nichole A. Collins has expounded upon the importance of a defendant's right to remain silent during a police investigation. But what about if a case makes it all the way to a jury trial? Should the defendant continue to remain silent or take the stand?

Collins is quick to point out that every defendant is well within his or her constitutional rights, whatever choice is made. Whether a client should take the stand varies depending on the case and is always the subject of much consideration.

"A criminal jury trial is the most important stage of the game,'' Collins says. "It comes after the preliminary hearing, arraignment, suppression hearings and plea negotiations. If a case gets to a trial things are usually pretty serious.

"At that point the defendant has the absolute right to testify,'' she says. "They also have the absolute right under the Fifth Amendment of the U.S. Constitution, as well as Article I, Section 9 of the Pennsylvania Constitution, to remain silent."

There are pros and cons to remaining silent at trial, Collins says.

A defendant's silence is not always golden at trial

"On one hand, if you remain silent, the prosecution has the burden to prove every element of the crime(s) you were charged with beyond a reasonable doubt,'' Collins notes. "A guilty person cannot say a word, and if the Commonwealth's case is not strong enough, they can be acquitted or found not guilty.''

Such is the beauty of the American justice system; the burden of proof rests wholly with the prosecution. A defendant who declines to testify, however, risks leaving a jury with only the prosecution's view of the case.

"When the defendant does not testify, the jury hears an incomplete story,'' Collins says. "Often, critical information is left out and it forces the jury to decide the case based on a partial presentation of the facts.''

While the law says a defendant's silence shall not be held against him or her, there is still human nature with which to contend.

"There is an instruction that the jury must not confer an inference of guilt on the defendant for exercising his or her right to remain silent,'' Collins says. "But it's human nature to want to hear both sides of the story. The integrity of the justice system depends on the full and fair disclosure of all of the relevant facts.''

So what are the key advantages of a defendant taking the stand?

It depends on whether the defendant is credible. It helps when the defendant's story is one that is believable and logical to the jury.

"The jury is the fact-finder,'' Collins explains. "If a defendant takes the stand, it helps the jury focus on the key facts in dispute. The jury can narrow their focus to the uncontested facts.''

So it's better for a defendant to take the stand?

Not so fast.

The real perils of patting a criminal defendant on the stand

While there are real advantages to a defendant telling his or her side of the story directly to the jury, there are huge risks as well. Perhaps the biggest issue is whether the jury will find the defendant believable.

"When a defendant takes the stand, it opens the door for the prosecution to cross examine the defendant regarding prior criminal convictions, among other things,'' Collins says. "The defendant's testimony gives the prosecution the opportunity to bring out evidence which would not otherwise be admissible in the Commonwealth's case in chief, including impeachment evidence.''

What is more, should a defendant lie on the stand, it can result in perjury charges, or a harsher sentence. This is especially true in federal court, where defendants are penalized for failing to take responsibility for their criminal conduct.

Even a defendant with a sterling background and an unimpeachable story is a risk on the stand. Simply put, it is a pressure-cooker up there. It is easy to become confused and answer a question incorrectly.

"If a defendant is a nervous, sweaty mess that cannot look the jury in the eye, it looks bad. That is not the sort of person that I want on the stand,'' Collins says. "I have a good idea of what my client is like and whether or not they can handle the pressure of cross-examination before the case gets to trial, but there are no guarantees. Some people testify very well, and others take the stand and blow it.''

It's never a cookie-cutter decision for this criminal defense attorney

Collins rarely goes to trial already knowing for certain whether or not she'll have her client testify. Instead, she likes to prepare her clients for both possibilities. She then gauges how the prosecution's case unfolds and reserves a final decision until after the Commonwealth rests its case.

In one recent DUI trial, Collins and her client declined to present testimony.

"I could have put my client on the stand to piece together some of the details,'' she says. "But it wasn't worth the risk. It was clear to me that the Commonwealth didn't have enough evidence to meet its burden of proof. It was the sort of situation where you need to quit while you're ahead.''

Collins varies her strategy depending on the facts of each individual case. In domestic violence situations where there are no witnesses and no evidence, the testimony of the defendant is often a critical piece of the puzzle. In such a scenario, it is very difficult to leave a defendant on the sidelines and permit the testimony of the Commonwealth's witness to go unchallenged.

"That is the sort of case where it is the alleged victim's word against the defendant's word," Collins says. "I am more inclined to put the defendant on the stand in a case without corroborating evidence.''

The bottom line is that whether a defendant should take the stand is a crucial, potentially case-changing choice that should be considered carefully between the client and his or her experienced attorney.

"There is no one-size-fits-all solution,'' Collins stresses. "After the Commonwealth rests, depending on what evidence is presented, we will have a better idea of whether it is worth the risk for my client to the stand. The important thing from my perspective is that I am prepared, and my client is prepared, for both scenarios.''