Historically, Oklahoma criminal defense practitioners have subscribed to the strict prohibition that a criminal defendant should never testify in his/her own defense. The reasoning for said approach centers around the burden of proof and presumption of innocence: the government has the burden to prove the defendant’s guilt beyond a reasonable doubt and the defendant is not mandated to prove his/her innocence. Why help the government? Moreover, criminal defendants generally do not make good testifying witnesses. However, trial tactics are always evolving and every case and defendant is unique.
THE PROS OF TESTIFYING
1. Satisfies the Jury’s Desire to Hear from the Accused
The jury wants to hear from the accused! That, in itself, may be good news because the jury is arguably willing to entertain the possibility that there is a perfectly logical explanation for transpired events leading to the defendant’s arrest and indictment. In other words, most jurors recognize that there are two (2) sides to every story and the defendant’s testimony may be just as likely to be truthful as deceitful. Although defendants are not required to testify in his/her own defense or offer any testimony to mitigate or negate the government’s evidence, some research suggests that the withholding of information increases the desire of individuals to have that knowledge. According to Psychological Reactance Theory, if jurors feel they are being denied access to important, relevant information about the defendant, the jurors may react against the accused by placing greater weight on the information not being provided. Thus, failing to testify may lead jurors to place more emphasis on this omission, which will likely be perceived as an attempt to conceal incriminating evidence. Moreover, research has also indicated that if a criminal defendant is innocent, then jurors expect him/her to take the stand and defend himself/herself. As such, if the defendant does not testify, jurors may perceive the defendant negatively. On the other hand, as you will see from the following sections, quenching the jury’s thirst to hear from the accused may not be in the defendant’s best interests.
2. Substantiate Certain Defenses
If witnesses to the alleged offense are lacking and counsel cannot effectively validate a specific defense through direct or cross-examination, the accused testifying in his/her own criminal defense may be warranted. A few of these defenses include the following:
i. Entrapment: The defense of entrapment is available if the defendant has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers to commit a crime. Although effective cross-examination of law enforcement and/or agent(s) of the police will likely lay the foundation for the entrapment defense, the defendant’s testimony may be helpful to (i) establish that he/she did not have any previous intent or purpose to commit any offense and (ii) explain to the jury how the defendant was seduced.
ii. Self-Defense: A person is justified in using non-deadly force if that person reasonably believed that use of force was necessary to protect himself/herself from imminent danger of bodily injury. Further, a person is justified in using deadly force if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Again, if there are not any witnesses that may corroborate the defendant’s self-defense claim, the defendant’s only chance of exoneration may be to take the stand and explain the circumstances surrounding the incident, including but not limited to (i) imminency of the danger, (ii) level of force used by both the defendant and the alleged victim, and (iii) the accused’s state of mind and viewpoint.
iii. Duress Defense: The defense of duress is utilized to introduce evidence that the defendant committed the alleged offense because of a reasonable belief that the defendant and/or the defendant’s spouse/children was/were in imminent danger of death or great bodily harm from another party. Taking the stand in his/her defense may assist the trier of fact in understanding the (i) imminency of the danger, (ii) nature of the threat, (iii) relationship of the parties, and (iv) defendant’s attempt to use a reasonably safe opportunity to escape from the imminent danger of death or great bodily harm.
iv. Good Faith (Federal Court): This defense is utilized in federal court as a complete defense to financial crimes to show that the defendant acted in good faith and not with the specific intent to defraud the alleged victim. Obviously the goal is to establish this defense through cross-examining the government’s witnesses, not through the defendant’s testimony. Usually counsel will know if he/she has done enough to warrant a good faith instruction without needing their client’s testimony by simply asking the judge. Before the defense rests and during a recess the judge will ask counsel (out of the presence of the jury) if there are matters that need to be addressed. Counsel should inquire of the Court whether the good faith defense has been established. If not, then the accused will have to testify if good faith is the theme of the defense and the defendant needs the good faith instruction.
3. Clarify Issues for the Jury that Can Only Be Explained by the Defendant
It may be beneficial for the accused to testify in his/her own defense in order to clarify issues for the jury that can only be explained by the defendant. This situation arises when the accused is the only witness to what happened, when the defendant may have seen/heard something no else saw/heard, or when the accused knows vital facts no one else knows. As such, the defendant would testify in order to counter the government’s version/theory and provide the jury with an alternative explanation. Again, this approach is suggested only if the accused is the only witness to the event, the evidence offered by the government is damning, and the defendant can provide the jury with specific and accurate details as to what really transpired.
Moreover, the defendant may need to explain to the jury the reason why he/she said or did something. Statements and incidents contained in police crime reports and other law enforcement narrative reports are often inaccurate, incomplete (contain omissions), and/or taken out of context. Law enforcement will rely on these reports in preparing for their testimony at trial. Sometimes it may be helpful to take the stand to fill in the gaps and explain the meaning and/or context of a specific statement or action. However, there must be a perfectly logical explanation. If not, the jury will not appreciate the defendant (and the defendant’s attorney, as well) trying to insult their intelligence with an outlandish and far-fetched explanation.
THE CONS OF TESTIFYING
1. Prior Convictions, Inconsistent Statements, and Impeachment
If the defendant testifies in his/her defense, the defendant’s credibility may be impeached by the prosecution. This presents a dilemma in cases where the defendant has made inconsistent statements to family members, co-workers, friends, or law enforcement, related to key facts in the case. If the Oklahoma criminal attorney defendant testifies, the prosecution is entitled to question the defendant about the prior statements inconsistent with the defendant’s testimony, and if the defendant denies having made the prior statements, the prosecution can introduce evidence to show that the defendant made the prior statements. Although the defendant is entitled to explain the prior inconsistent statement, he/she risks “digging a deeper hole.” This can destroy the defendant’s credibility because jurors will simply not believe witnesses who cannot keep their story straight.
This also poses an enormous problem when the accused has prior felony convictions and/or misdemeanor convictions involving dishonesty or false statement. The government is mandated to provide the accused reasonable notice in advance and will ordinarily file a 2404(B)/404(b) notice if the government intends to introduce evidence during its case-in-chief of the accused’s other crimes, wrongs, or acts in order to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (even though we all know that its true purpose is to prove the character of the accused and to show action in conformity therewith). Moreover, the Court must also ascertain whether the probative value of the evidence is substantially outweighed by its prejudicial effect.
What if the stars align and the judge rules that the probative value of the defendant’s convictions is substantially outweighed by its prejudicial effect and rules that the prosecution cannot use this evidence in its case-in-chief? Can the accused then take the stand and testify with the utmost confidence that his/her past transgressions will not be revealed? Not only “No”, but “Hell no!!” If the defendant takes the stand, he/she opens the door to impeachment and the government may use evidence of the accused’s felony conviction(s) and misdemeanor conviction(s) involving dishonesty/false statement to attack the defendant’s credibility. In this author’s opinion, if this evidence is introduced, the war is lost, especially if the prior conviction and the current charge are similar. Research has consistently shown that evidence of the defendant’s prior conviction(s) is very damaging and increases the likelihood of conviction for the current charge. Jurors appear to use prior record evidence to make more general assumptions about the defendant’s character. Specifically, jurors speculate that if the defendant was convicted of a previous crime, the defendant is more likely to have committed the crime for which he/she is currently being tried. The damaging effect of prior convictions has also been well-documented by the courts:
“The obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution by the court in instructing the jury.” 
Again, once the accused is impeached with prior record evidence, the Oklahoma Attorneys’ defendant’s credibility will be destroyed, the jury will not listen to the accused’s testimony, and the defendant’s fate will be sealed.
2. Unconscious Burden Shift
During the judge’s preliminary instructions, the judge will instruct the jury on the presumption of innocence and the burden of proof. Specifically, the judge will instruct the jury that the government has the burden of presenting evidence that establishes guilt of the defendant beyond a reasonable doubt and the burden never shifts to the defendant to prove his/her innocence. However, many defense practitioners contend, despite these instructions on the presumption of innocence and burden of proof (and even if the jurors take the judge’s instructions to heart), there is an unconscious burden shift if the defendant takes the stand. Thus, this theory suggests that if the defendant testifies, he/she voluntarily strips himself/herself of his/her cloak of innocence and the jury will expect the accused to then prove his/her innocence. Moreover, the entire case then hinges on the defendant’s credibility and everything up until that point, including impeachment of the government’s witnesses, is forgotten. If the defendant fails to prove his/her innocence, it will be impossible for the defendant to put his/her cloak back on. Again, the war will be lost.
3. The Defendant Will Likely Make a Poor Witness
If the accused insists on testifying, the Oklahoma defense counsel must spend countless hours preparing the client for his/her testimony. This includes reminding the client of the theme of the case; explaining the logistics, dynamics, and do’s/don’ts of direct and cross examination; explaining the importance of body posture, eye contact, confidence, and demeanor; reviewing any exhibits that will be introduced during his/her direct; reviewing any statements that the client made; and preparing the client for the most important part of his/her testimony- cross-examination. Moreover, the defendant MUST have a pristine record, but if he/she indeed has a criminal record (and again, the accused insists on testifying), the defendant must be prepared to candidly address any prior convictions. The point here is that in order for the accused to make a good witness, he/she must possess above-average intelligence, have a clear record, follow the Oklahoma defense counsel’s exact instructions, have complete control over his/her emotions, and be so well-prepared that he/she is not unnerved by anything the prosecutor asks. In short, in order to succeed in this endeavor, everything must be close to perfect. In this author’s opinion, the accused must thrive on the stand, not merely survive.
Unfortunately, in most cases, the defendant will likely make a poor witness. First and foremost, it’s very difficult for anyone to keep his/her emotions in check. This poses a problem if your client is easily angered. During cross examination, the prosecutor will bring up prior convictions and inconsistent statements, attempt to confuse and mislead the defendant, attempt to negate and undermine the defendant’s direct examination, and may attempt to assassinate the accused’s character. If the prosecutor succeeds in getting under the defendant’s skin, the accused’s credibility will be diminished considerably. In addition, if the defendant testifies in his/her own defense, he/she risks falling victim to their own mannerisms, weaknesses, and shortcomings. It’s very common for testifying witnesses to talk too much, too little, too quietly or too loud; appear fidgety, stiff, or too lax; use a facial expression that conveys the wrong message, etc. Such shortcomings will only increase the jury’s suspicions of your client (which is already enhanced due to the accused’s mere status as a defendant in a criminal proceeding).
4. The Jury Recognizes that the Accused’s Testimony is Self-Serving
Even though the jury wants to hear from the accused and expects him/her to take the stand and proclaim his/her innocence, the jury will be suspicious of the defendant if he/she takes the stand because the jury recognizes that the defendant has a vested interest in offering self-serving testimony. Why? Because no one wants to go to prison and the jury recognizes that most people will say anything when their backs are against the wall and risk losing their freedom. Thus, even if the defendant has a clean record, has not made any prior inconsistent statements, and makes the perfect witness, the accused still takes the stand with a strike against his/her credibility. This suspicion will be further enhanced during the final instructions when the judge instructs the jury on judging the credibility/believability of each witness, including the defendant.
The decision to testify or not to testify is a double-edged sword. Either way, the defendant is likely to get cut. However, the goal is to avoid the sharper side of the blade that is likely to produce the fatal wound. Even if the accused has a pristine record, cannot be impeached, and would make a star witness, research shows that jurors are already suspicious of the accused for merely being the defendant in a criminal proceeding. However, as mentioned above, each and every case and defendant is unique and, as such, testimony may be warranted depending on the facts and circumstances of the case. Nevertheless, research indicates that simply remaining silent will result in fewer guilty verdicts than taking the stand and proclaiming one’s innocence. It’s this author’s opinion that, in most cases, the cons are going to substantially outweigh the pros.
Oklahoma criminal defense attorney Elliott Crawford offers representation for those accused of all Oklahoma criminal offenses including but not limited to: federal crimes, homicide, alcohol offenses, theft/property crimes, drug crimes, sex crimes, assault and battery offenses, municipal offenses, and weapon related offenses. Furthermore, criminal defense attorney Elliott Crawford handles cases in state, municipal, federal court, and paroles/parole revocations before the Oklahoma Pardon and Parole Board.