Defendants are often advised not to take the stand because they can be cross-examined by a professional whose job it is to make them look guilty. Under the Fifth Amendment, the defendant has an absolute right not to testify at trial, just as he or she has a right to give evidence on his or her own behalf if they choose to. But from a jury psychology standpoint, jurors typically want to hear the defendant’s story and don’t truly understand why someone wouldn’t seize the opportunity to deny guilt if the defendant is in fact not guilty of the charges.

There are certainly good reasons for a defendant not take the stand. Credibility is a key element when a defendant takes the stand.  Many times a defendant may not appear that credible. Perhaps taking the stand introduces evidence that otherwise might not be admissible (i.e., a prior conviction), or the defendant might not be comfortable speaking in public. Jurors often associate nervousness and certain non-verbal behaviors such as looking up when a question is asked, or touching their chin, as an indicator the witness is lying. While prepping a witness in the way they communicate is crucial, a simple question and answer can alleviate the concern that nervousness will be equated with hiding something. This question and answer will also “connect” the witness with the jury. The question and answer (or some close variation) are as follows:

Question: Mr. Defendant, are you nervous about testifying here today?

Answer: Yes.

Question: Why?

Answer: My career, reputation and being able to go on with my life is at stake here so I want to be sure that in my brief chance to explain myself here to the jury I communicate the truth of what really happened. I have never done this before so I am nervous being here doing this. “

The above exchange humanizes the defendant for the jury and makes the jury aware that testifying is a daunting task and jurors will think to themselves that they too would not want to get up and be cross examined by a seasoned prosecutor.

An added reason not to testify is that the defendant’s testimony gives the prosecution a basis to attack in its closing argument instead of having to defend the proposition that it has satisfied its burden of proof. When the defendant testifies, this attack normally ends the prosecution’s closing precisely because it can be effective. Therefore this scenario must be part of the defense lawyer’s reasoning in advising the client whether to testify.

Of course the overall story has to be believable and if it isn’t, and the jury finds the defendant guilty, the Judge can consider the continual denial an aggravating factor in sentencing. So to be clear, there are many reasons why a defendant should choose not to take the stand, but in a close call there are many reasons for taking the stand. The simple question and answer example above can go a long way towards convincing a jury that nervousness typically associated with lying can actually humanize the witness, and prevent jurors from drawing negative inferences based on perfectly understandable behavior having nothing to do with guilt or innocence.