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“Defense rests without calling the Defendant to testify


By Tonya L. Holliday
Senior Paralegal
The Gasper Law Group
This was the recent headline in the Casey Anthony jury trial. So you’re asking yourself, “If she’s innocent, why wouldn’t she want to testify in her own defense?” Casey Anthony was accused of murdering her child, Caylee. One might think if she was innocent she would want to shout it from the rooftops instead of sitting stoically next to her attorney as he stands in front of those jury members and says, “The defense rests.” However, there are several good reasons why defense attorneys may counsel their clients to not testify.

In preparing for a jury trial an attorney and the Defendant need to discuss the pros and cons of having the Defendant testify. For instance, if the Defendant has prior felonies he or she may not want to testify and have prior convictions used against him or her. Typically in criminal cases, the jury will not hear about a Defendant’s former felony convictions unless the Defendant takes the stand. There are other good considerations as well: Is the circumstantial (non-witness) evidence presented by the prosecution strong or weak? Will the testimony of the Defendant have any weight in deciding guilt or innocence? Is the Defendant credible and likeable? Defense attorneys want the jury to like their client, to sympathize with him or her, and understand the situation as presented by the defense. Sometimes, although certainly not always, that goal is better achieved by the Defendant’s silence.

If the Defendant has multiple cases – an open domestic violence case, a divorce case and a restraining order case for example – the Defendant and his attorney may not want him to testify where statements made in one case can be used to impeach the Defendant in one of the other cases. A Defendant might not want to make a statement in the Permanent Protection Order Hearing, only to have the opposing party get a copy of the transcript to use against him in the domestic violence case.

Whether or not to testify is a decision that must be decided on an individual case basis. Each Defendant must decide this with his or her attorney based on several factors which may be determined at trial (e.g. a last-minute decision based on the progress of the case) or can be decided in advance depending on the circumstances of the Defendant’s case.

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