If you are currently facing criminal charges, one of the most important decisions you must make is how to resolve your case. Unless the State decides to dismiss all charges against you, your options will be reduced to negotiating a guilty plea agreement with the State of Nebraska or taking your case to trial and allowing a judge or jury to decide your fate. If you have already made the decision to go with the latter of the two options, you now have an equally important decision to make – whether or not to testify at your trial. Deciding to testify or not is a decision that should only be made after a prolonged consultation with your criminal defense attorney; however, it may help you to know more about the issues involved in your decision ahead of time. With that in mind, a Nebraska criminal defense attorney discusses the pros and cons of a client testifying at his/her trial.
The State’s Burden of Proof
One of the most important aspects of the American criminal judicial system is the concept that an accused is innocent until proven guilty. Those of us who were born and raised in the U.S. take this concept for granted; however, in much of the world the presumption of innocence does not exist. In practical terms, what the presumption of innocence means is that the State of Nebraska has the burden of proving you guilty beyond a reasonable doubt at trial. What that should mean is that the State must prove each and every element of the offense for which you have been charged beyond a reasonable doubt for the judge or jury to return a verdict of guilty. Because the State has the burden of proof in a criminal trial, the State always presents its case first. In fact, a defendant is not required to present any evidence at all at trial – and sometimes they don’t! If a defense attorney believes strongly that the State has clearly failed to meet its burden of proof, and that presenting any evidence would just muddy the waters or even be detrimental, the attorney may recommend that the defense simply rest without putting on any evidence or testimony. This can be a risky move, however, if the trial is in front of a jury because juries tend to want to hear something from the defendant’s side.
Your Right Against Self-Incrimination
Along with the presumption of innocence, a defendant also has a number of important rights that are guaranteed by the U.S. Constitution. One of those rights is the right against self-incrimination found in the Fifth Amendment, the relevant part of which reads “…nor shall be compelled in any criminal case to be a witness against himself…” What this right means, in simple terms, is that you cannot be forced to testify at trial. You can choose to waive that right and testify; however, you cannot be forced to do so.
Factors to Discuss with Your Nebraska Criminal Defense Attorney
When contemplating your testimony, there are several important factors worthy of consideration and discussion with your attorney, including:
- Judge vs. Jury – one big factor is whether a judge or jury will decide your fate. A judge is far more likely to truly not read anything into your silence. Juries, on the other hand, sometimes feel as though a defendant did not testify because he/she had something to hide.
- Opening the Door – though they are much more complex than this, the criminal trial rules essentially say that once you decide to testify, and discuss something on direct examination, you have “opened the door” for the prosecutor to ask additional questions on cross-examination. This can become problematic if a defendant does not want to discuss certain things or answer certain questions.
- Perjury – if you lie on the stand, you are subject to the penalties for perjury. In addition, your attorney cannot knowingly allow you to commit perjury.
- Impressions – you have to be brutally honest with yourself and listen to your attorney’s opinion with regard to the impression jurors are likely to get of you if you testify. How do you come off when speaking? Are you overly confident or painfully shy? Is your physical appearance intimidating? Do you lose your temper easily? An honest self-assessment is crucial when contemplating taking the stand.
Contact Us
If you have been charged with a criminal offense in the State of Nebraska, it is in your best interest to consult with an experienced Nebraska criminal defense attorney right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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