DEFENDANT - SHOULD HE TESTIFY?

• NCJ Number: 66202
• Journal: TRIAL DIPLOMACY JOURNAL Dated: PROMOTIONAL ISSUE (1979) Pages: 21-24
• Author(s): H B ROTHBLATT
• Date Published: 1979
• Length: 4 pages
• Corporate Author: Court Practice Journal, Inc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

CONSIDERATIONS OF THE DEFENSE ATTORNEY IN DETERMINING WHETHER HIS CLIENT SHOULD TESTIFY ARE EXPLORED, AND CLIENT APPEARANCE AND BEHAVIOR WHEN PRESENTING TESTIMONY ARE DISCUSSED.

Abstract

THE DECISION OF WHETHER TO ALLOW A CLIENT TO TESTIFY ON HIS OWN BEHALF IN A CRIMINAL CASE CAN BE THE MOST IMPORTANT DECISION THE DEFENSE ATTORNEY MAKES. ALTHOUGH THE DECISION TO TESTIFY RESTS WITH THE CLIENT, HE SHOULD BE URGED TO DO SO UNLESS THERE ARE COMPELLING REASONS AGAINST IT. THE MAJORITY OF JURORS WILL ASSUME THAT HE HAS SOMETHING TO HIDE IF HE DOES NOT TESTIFY. IN MAKING THE DECISIONS, THE ATTORNEY SHOULD CONSIDER WHETHER THE CLIENT'S TESTIMONY WILL SUPPORT THE DEFENSE THEORY THE ATTORNEY INTENDS TO PRESENT. ALSO IMPORTANT IS THE POSSIBILITY THAT THE CLIENT'S TESTIMONY MAY REVEAL INFORMATION NOT COVERED BY THE TESTIMONY OF OTHER WITNESSES. THE CLIENT'S PRIOR CRIMINAL RECORD, THE STRENGTH OF THE PROSECUTION'S CASE, AND THE POSSIBILITY OF RENDERING INCRIMINATING EVIDENCE ADMISSIBLE SHOULD ALSO BE CONSIDERED. THE MOST IMPORTANT FACTOR IS THE DEFENDANT'S CREDIBILITY. A POSITIVE, FAVORABLE DEMEANOR ON THE CLIENT'S PART IS ESSENTIAL TO HIS TESTIMONY. DRESS, VOICE, SPEECH PATTERNS, PHYSICAL CHARACTERISTICS, AND BODY LANGUAGE CAN EITHER ANTAGONIZE A JUROR OR ESTABLISH GOOD RAPPORT. A CRIMINAL DEFENDANT WHO IS INCARCERATED HAS A CONSTITUTIONAL RIGHT TO WEAR CIVILIAN CLOTHES AT HIS TRIAL, AND HE SHOULD DO SO. CONSERVATIVE DRESS AND GOOD GROOMING ARE ESSENTIAL. THE CLIENT MUST BE PREPARED TO PRESENT HIS TESTIMONY IN A CLEAR, ARTICULATE MANNER. THE CLIENT SHOULD MAINTAIN EYE CONTACT WITH THE JURY WHILE BEING QUESTIONED. HE SHOULD LEAN SLIGHTLY TOWARDS THE JUDGE OR JURY AND SIT SLIGHTLY FORWARD TO CONVEY TRUST AND OPENNESS. THE CLIENT SHOULD BE CALLED LAST; HE WILL THEN HAVE A CHANCE TO EXPLAIN ANY INCONSISTENCIES THAT MAY HAVE ARISEN DURING CASE PRESENTATION. FOOTNOTES ARE PROVIDED IN THE ARTICLE. (LWM)