Whether Or Not To Take The Stand

Whether or not the defendant should take the stand in their trial is a tough decision. It is inevitably the decision of the defendant. It is not the court’s decision or the lawyer’s decision. Hopefully the defendant will strongly consider his attorney’s advice about the matter. Let me share some things I have experienced over the years.

Juries do want to hear from the Defendant. I think it is in the back of their minds wondering why the Defendant didn’t take the stand. However, I think most jurors take it seriously when they are informed by the court not to hold it against the defendant for not taking the stand. The 5^th Amendment is a longstanding and valued tradition in our legal history.
If the Defendant takes the stand and the jurors think he is lying, they will hold it against him. So, sometimes it is better to just let unanswered questions hang rather than let the jury think the Defendant took the stand and lied. I know a Defendant wants to do everything they can to help their case and sometimes the temptation is to try to clear things up for a jury. Unfortunately, that can rub the wrong way. Remember, it is the duty of the State to prove their case beyond a reasonable doubt, not the other way around.
In Kansas, under KSA 60-455 the prosecution isn’t supposed to bring up prior bad acts. For example, if you are in trial for a DUI, the prosecutor isn’t supposed to bring up any past DUI a Defendant may have. However, if the Defendant somehow opens the door, that evidence can come in. The danger of that occurring increases when a defendant takes the stand.
On one hand a defendant’s lawyer may be able to help the case during the direct testimony of his client. On the other hand, the prosecutor might destroy the defendant on the stand and the case is sunk. The things to consider are the facts of the case, how it could be construed during direct and cross, how the Defendant may do, and the prosecutor doing the cross. Is the defendant likeable, friendly, articulate, and affable? Will he be able to persuasively explain away in understandable terms what happened?

When I first became a criminal defense attorney, I thought I would usually want my clients to take the stand. In fact, I had my client take the stand in my first trial so many years ago. We actually won! Despite the acquittal, I now feel that it usually is not best for my client to take the stand. Remember the saying, “it is better to remain silent and be thought a fool than to speak and remove all doubt.”