When facing the likelihood of going to trial, many defendants ask themselves whether they should testify. The right to testify is a Constitutional right. See Rock v. Arkansas, 483 U.S. 44, 52 (1987). The right to remain silent is also a Constitutional right. See U.S. Const. Amend. V. So, when should a defendant testify and when should they not? While the circumstances of each case are going to vary, here are a few things to keep in mind when making the decision.
Prior felony convictions can be used against you to show you are not credible. See C.R.S. § 13-90-101. If you have prior felony convictions and are now considering testifying at trial, this is something you should consider when making your decision. Sometimes a defendant does not testify simply because they have a felony conviction for something worse than what they are on trial for. For example, you are going to trial on a domestic violence case for harassing your ex with numerous text messages late at night. You have a previous felony conviction for assault 2 domestic violence. Because assault 2 is much more serious than harassment, you likely would not want the jury to hear about that conviction. Although the judge will instruct the jury to only consider the conviction to assess your credibility (whether you’re telling the truth), the reality is once a jury hears that you’ve been convicted of a much more serious domestic violence offense, the jury is much more likely to convict you of the harassment charge.
Sometimes you have to testify in order to get evidence in at trial. Regardless of criminal convictions, sometimes a defendant has to testify. For example, in order to get an affirmative defense instruction, there must be a scintilla (a very small amount) of evidence to support the defense. See People v. Speer, 255 P.3d 1115, 1125 (Colo. 2011). So, lets say you are on trial for assault. You want to present a self-defense defense but the alleged victim testifies that they didn’t provoke the fight or even touch you at all. In order to present some evidence of self-defense, you will likely have to testify that the alleged victim hit you first.
However, be aware that this can back-fire in some situations. A good example is a DUI trial where you refused to do a chemical test. The district attorney can argue that you refused because you were intoxicated. The only way to rebut that is to get on the stand and offer some other reason why you refused. Maybe you refused because you were sick at the time and needed medical attention. However, if you get on the stand and say this and you have past DUI convictions based on refusals, you open the door to allow the district attorney to introduce evidence of those past refusals to rebut your claim that you refused because you were sick. Now the jury gets to hear that you’ve had DUI’s and refused in the past and will most likely convict.
The decision whether to testify is always up to a defendant. However, you should consult with an attorney who can evaluate the pros and cons of testifying based on the specific circumstances of your case before you make any decision.
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