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Defendant’s Decision Not to Testify

The trial court must be careful not to influence the defendant's decision whether or not to testify and should limit the colloquy to advising the defendant that he or she has a right to testify, that if he or she wants to testify that no one can prevent him or her from doing so, and that if he or she testifies the prosecution will be allowed to cross-examine him or her.

In connection with the privilege against self-incrimination, the defendant should also be advised that he or she has a right not to testify and that if he or she does not testify then the jury can be instructed about that right. State v. Neuman, 179 W. Va. 580, 585, 371 S.E.2d 77, 82 (1988) (quoting People v. Curtis, 681 P.2d 504 at 514).

. . . the ideal time to conduct the colloquy is immediately prior to the close of the defendant's case. Therefore, whenever, possible, the trial court should conduct the colloquy at that time.

Of course, the trial court judge cannot independently foresee when the defense is on the verge of resting and conduct the colloquy at that precise moment. Consequently, the trial courts will require the cooperation of defense counsel to enable them to conduct the colloquy immediately prior to the close of the defendant's case.

Furthermore, although the ultimate colloquy should be conducted after all evidence other than the defendant's testimony has been received, it would behoove the trial court, prior to the start of trial, to:

(1) inform the defendant of his or her personal right to testify or not to testify

(2) alert the defendant that, if he or she has not testified by the end of the trial, the court will briefly question him or her to ensure that the decision not to testify is the defendant's own decision.

Such an early warning would reduce the possibility that the trial court's colloquy could have any inadvertent effect on either the defendant's right not to testify or the attorney-client relationship. 79 Haw. at 232, 236-37, 900 P.2d at 1299, 1303-04 (footnote omitted).

In People v. Mozee, 723 P.2d 117, 124 (Colo. 1986), the Colorado Supreme Court decided that the answer is no and stated, in relevant part, as follows:

Several considerations influence our decision to reach a conclusion that contrasts with the requirement imposed in People v. Curtis, 657 P.2d 990 (Colo. App. 1982), aff'd, 681 P.2d 504 (Colo. 1984), of a mandatory advisement of the right to testify whenever a defendant chooses to remain silent.

First, the need for an advisement when a defendant expresses the intention to testify is lessened in part by the fact that the court is already required to advise the defendant, at the defendant's first appearance, of the constitutional right to remain silent. . . . It is also possible, even likely, that any particular defendant has received one or more such advisements from law enforcement officials during the course of a criminal investigation.

These advisements stand in contrast to the situation in People v. Curtis, for a defendant is unlikely to receive any pre-trial judicial advisement of his constitutional right to testify, or of the critically important fact that the ultimate decision whether to testify must be made by him and not his counsel.

It is true that in any of these pre-trial advisements concerning the right to remain silent, the defendant likely does not receive a full explanation of the many attributes of that right.

It is a duty of a defense counsel, however, to ensure that the defendant has been advised of the full array of matters associated with the basis constitutional right to remain silent to the extent that they relate to the defendant's circumstances.

This includes the benefits flowing from an exercise of that right at trial and the consequences stemming from a waiver of the right. Here again, we find a contrast with the situation in Curtis.

Underlying our concern in Curtis was the belief, justifiable given the facts in that case, that a defense attorney, acting in a good faith and with a zeal to prevent the client's conviction, might overbear a defendant's desire to testify.

We noted in Curtisthat a defendant's desire to tell his side of the story may be of overriding importance to him even though, viewed objectively, the defendant's testimony may increase the likelihood of conviction. We also observed in Curtis that the opportunity of the defendant to place himself and his own viewpoint before the trier of fact is necessary to legitimate the outcome of the trial.

Although sensitivity to these factors is required of defense counsel, see EC 7-8, Code of Professional Responsibility, we perceive a real risk that without a judicial advisement, the truly personal considerations incident to a defendant's decision not to testify will be unduly minimized by counsel in an effort to assure the best chance of acquittal.

For this reason, it is necessary that the trial court intervene to make sure that the defendant understands that he has the right to testify, that he understands the real consequences of deciding to testify or not to testify, and that he and not his counsel is ultimately responsible as to whether the defendant testifies.

Given the independent advisement by the court to the defendant concerning his right to remain silent, and given the practical realities of defense trial strategy, we do not perceive the same level of tension to exist between a defendant and defense counsel when a defendant decides to take the stand as concerned us in Curtis when a defendant elects not to testify.