In Brooks v. Tennessee, 406 U.S. 605 (1972), the United States Supreme Court confronted a Tennessee statute which provided that, in criminal cases, "the defendant desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case." Id. at 606 n.1.
During the trial, at the close of the State's case, defense counsel moved to delay petitioner's testimony until after other defense witnesses had testified. The trial court denied this motion on the basis of Tenn. Code Ann. § 40-2403 (1955), which requires that a criminal defendant "desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case." Although the prosecutor agreed to waive the statute, the trial court refused, stating that "the law is, as you know it to be, that if a defendant testifies he has to testify first." The defense called two witnesses, but petitioner himself did not take the stand.
The concern of the Tennessee legislature was the same concern the court here expressed in denying Kido's motion for new trial -- that a criminal defendant could tailor his testimony to that of prior defense witnesses:
The rule that a defendant must testify first is related to the ancient practice of sequestering prospective witnesses in order to prevent their being influenced by other testimony in the case. See 6 J. Wigmore, Evidence § 1837 (3d ed. 1940). Because the criminal defendant is entitled to be present during trial, and thus cannot be sequestered, the requirement that he precede other defense witnesses was developed by court decision and statute as an alternative means of minimizing this influence as to him. According to Professor Wigmore, "the reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory rather than to veracity, so as to meet the necessities as laid open by prior witnesses." Id., at § 1869. Id. at 607
The Supreme Court did not consider this concern paramount: "Although the Tennessee statute does reflect a state interest in preventing testimonial influence, we do not regard that interest as sufficient to override a defendant's right to remain silent at trial." Id. at 611.
The Supreme Court explained the more pressing constitutional concern at stake:
It must often be a very serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, a question that he is not required to decide until, upon a proper survey of all the case as developed by the state, and met by witnesses on his own behalf, he may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense, are equally submitted to the free and unrestricted choice of one accused of crime, and are in the very nature of things beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action.
Although a defendant will usually have some idea of the strength of his evidence, he cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand. They may collapse under skillful and persistent cross-examination, and through no fault of their own they may fail to impress the jury as honest and reliable witnesses. In addition, a defendant is sometimes compelled to call a hostile prosecution witness as his own. Id. at 608-609.
Accordingly, the Supreme Court held that the Tennessee statute "violates an accused's constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all." Id. at 612.
The Brooks Court also held that the Tennessee statute was "an infringement on the defendant's right of due process . . . . as imposed upon the States by the Fourteenth Amendment." Id.
The Supreme Court explicated how this additional constitutional interest was implicated:
Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right. By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense -- particularly counsel -- in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the "guiding hand of counsel" in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand. Id. at 612-13.
In conclusion, and observing that "the State makes no claim that this was harmless error," the Supreme Court reversed Brooks' convictions and remanded for a new trial. Id. at 613 .