Should You Testify in Your Own Defense?

Most experienced criminal defense attorneys advise against testifying because of the risks involved in cross-examination. While you have the constitutional right to testify in Nevada, doing so can expose you to impeachment by prosecutors who may exploit inconsistencies or weaknesses in your testimony. The decision should only be made after careful consultation with your attorney, who can weigh the specific facts of your case against the potential benefits and risks of taking the stand.

When facing criminal charges, it is natural to want to speak up and defend yourself, especially if you believe that you are innocent. You may want to shout it from the rooftop, but should you?

This can start from the minute you are facing criminal charges or are arrested for a crime. The police will attempt to question you or get information from you in a questioning or interrogation process. Once you’re arrested or charged with a crime and the court case against you moves forward, you will have the opportunity to testify in court and defend yourself or explain your situation regarding the charges against you. You have the right to do just that, but again, should you?

A good lawyer will always tell you that speaking to the police without legal representation is a dangerous game that could cause more harm than good. However, it is natural instinct to want to defend against charges against you, and when you are first facing charges it may seem like a good idea to cooperate with police, if nothing else than to get this taken care of and move on.

You should consider speaking with a lawyer the minute you know that you’re facing criminal charges, regardless of the type of case you’re facing. Criminal charges, regardless of the severity, can have a permanent effect on your life going forward and can lead to life-altering consequences that can include everything from prison time to hefty fines and a criminal record that can follow you forever.

The bottom line is always speak with a lawyer and never speak to the police or testify to anything without legal counsel.

Should I Testify in My Own Trial?

In Nevada, like other states, a criminal defendant has the right to testify in their own defense, but they are not required to do so. This decision should not be considered without consulting with a lawyer. Experienced attorneys often advise against testifying because it can be risky due to cross-examination.

When considering whether to testify or not, you should consider the following:

The Right to Remain Silent

Remember, anything you say can and will be used against you. The Fifth Amendment guarantees the right against self-incrimination. The defendant cannot be compelled to testify and incriminate themselves. If you give testimony, you may say something that can inadvertently be used against you. Silence can also have a negative effect, as it may be seen as you have something to hide and that’s the reason you’re not speaking.

The Cross-Examination Risk

Anything that you testify to can be used by the prosecution in your cross-examination. The prosecution can expose inconsistencies or weaknesses in your story, causing the court or jury to doubt your story. Once something is testified to, the other side can use it for their own case, even against you.

Waiver of Fifth Amendment right

As we have stated, the Fifth Amendment to the Constitution gives a person the right to not incriminate themselves. By testifying, you give up that right and may be forced to answer questions about the charges.

Impression on the Court

Some people don’t come across as sympathetic based on their facial expressions, the way they speak, or how they answer questions and in what manner. This can lead to a bad impression, even if the testimony is favorable.

Focusing on Other Evidence

If the evidence in your case is strong—this includes provable alibis, expert testimony, witness statements, video or photo evidence as well as expert testimony—it may be in your best interest to not testify and let your case be proven by the evidence.

Presenting your version of events and addressing the charges

When you testify, you get to explain your side of the story regarding the charges and can paint a complete picture of the events surrounding the circumstances leading up to the charges and the contexts in which they happened.

The decision to testify is one of the most important decisions that you’ll make during the course of your criminal case. This should never be made lightly and only after careful consideration with your attorney. Your lawyer can advise you on the potential risks and benefits of whether or not to testify.

Why Is Consistency Important When Testifying to Police and the Court?

During a criminal investigation, you may give multiple statements at different times—when first arrested, during police questioning, in depositions, and potentially at trial. Each statement becomes part of the record and can be used to challenge your credibility later.

If you choose to answer questions from the police, your statements need to be consistent from the beginning. These statements will be used in court, and if you testify, prosecutors will compare them to your testimony. Even minor inconsistencies can make juries and judges question your truthfulness. In some cases, months or even years pass between your first statement and trial, yet every word must align.

• Credibility: Inconsistent statements make you look unreliable or untruthful, which can impact your credibility with the judge or jury.
• Impeachment: Once you make statements, they can be used against you. The prosecution can use previous statements if they differ significantly to impeach your testimony, casting doubt about your honesty.
• Legal consequences: If you deliberately lie, you are committing perjury (lying under oath). This is a criminal offense, and you can face additional criminal charges. Under Nevada law (NRS 199.120), perjury is a Category D felony punishable by one to four years in prison and fines up to $5,000.

To ensure your statements remain consistent throughout the criminal process, always consult with your attorney before giving any statement. Your lawyer will advise you whether you should speak at all and will be present to ensure you only answer appropriate questions. If you decide to testify at trial, review all previous statements with your attorney first.

What Are the Consequences of Not Testifying in a Criminal Case

Even though most lawyers will advise you not to testify, it is entirely your right to do so. Failing to testify in your own defense has its own set of consequences and a few upsides that can benefit you.

Under the Fifth Amendment, you have the right not to testify, preventing self-incrimination. The prosecution cannot force you to testify, nor can they use the silence as evidence of guilt. However, the jury may perceive a defendant’s silence negatively, leading to potential misconceptions about their guilt.

The consequences to consider when making a decision not to testify include:

Potential Juror Bias

Even though jurors will be instructed not to, some jurors might view the defendant’s silence as guilt.

No Negative Inferences

The prosecution cannot make assumptions about a defendant’s silence. According to the landmark U.S. Supreme Court case Griffin v. California (1965), prosecutors are forbidden from commenting on a defendant’s choice not to testify, as this would violate Fifth Amendment protections against self-incrimination.

May Be Convicted Anyway

Even if you don’t testify, you may be convicted by other evidence anyway. By choosing to testify, you can shed light on other evidence that exists and make your side of the story known.

What Will My Attorney Advise Me to Do About Testifying in My Own Defense?

A person’s decision to remain silent is protected. It is crucial to understand what others may infer from not testifying or the risk of testifying. Your criminal defense attorney can provide advice on whether it is in your best interest to testify or not based on your particular case, since there are potential risks that will come up if you choose to testify.

Your attorney will advise you that there will be a cross-examination by the prosecution, and they will use any inconsistencies to damage your testimony. Your lawyer can also explain that your testimony could damage your credibility and leave the jury to infer certain things about you based on your demeanor, even though they are instructed not to.

Your Nevada Criminal Defense Lawyer

While facing criminal charges is an often terrifying experience, The Defenders can help you understand and navigate the court system. Our team will advise you on all aspects of your case, including whether or not to testify in court as the defendant.

At The Defenders, we will prepare our clients for all lines of questioning and testimony by reviewing the case, staging mock trials to question our clients, and being with our clients during all questioning from the beginning. We have been representing clients in Nevada against criminal charges for decades.

Our team of expert lawyers have represented clients in every aspect of criminal charges, from DUI to murder and everything in between. From the moment you become aware that you are facing criminal charges, you should consider a consultation with a defense lawyer.

At your consultation, your lawyer can explain what to expect during the course of your criminal case. Hiring The Defenders guarantees that you have someone on your side that knows the legal system and will use all the tools at our disposal to mount a defense that is best suited to your particular case.

We will also advise you whether or not you should testify in your case. That decision, however, is ultimately up to you. Speak with one of our lawyers at your consultation appointment.

The decision to testify is too important to make alone. Let The Defenders’ experienced criminal defense attorneys evaluate your case and provide the guidance you need to protect your rights and your future.