When analyzing the issue of whether a defendant in a self-defense criminal case should testify, two major concerns should be considered. The first concern deals solely with the factual and legal issues presented by the case, without regard to issues relating to the particular defendant; the second concern relates to issues involving the particular defendant.
The analysis that follows assumes a hypothetical case in which the evidence is likely to show that a criminal defendant acted lawfully, in self defense, and that the defense team reasonably believes the defendant should (if everything goes well at trial) be found not guilty.
The analysis that follows assumes a hypothetical case in which the evidence is likely to show that a criminal defendant acted lawfully, in self defense, and that the defense team reasonably believes the defendant should (if everything goes well at trial) be found not guilty.
I. Legal Issues
Conventional criminal defense “wisdom” is for attorneys to counsel their clients to not testify at trial. The primary reason for this is because the U.S. Constitution protects the right of criminal defendants to not be compelled to be a witness against themselves, which has been held to include a prohibition against prosecutors bringing to the jury’s attention that the defendant exercised his right to not testify at trial. This strategy forces prosecutors to “prove their cases” in order to obtain criminal convictions.
Criminal defendants in self-defense cases have exactly the same constitutional rights – including the right against self-incrimination – as do defendants in non-self-defense cases.
The substantive plea that a defendant enters at the outset of every criminal case is always the same: “Guilty” or “Not Guilty.”
A plea of “Not Guilty” can mean many different things, most of which do not apply to self-defense cases.
A “Not Guilty” plea can mean the defendant is claiming:
Criminal defendants in self-defense cases have exactly the same constitutional rights – including the right against self-incrimination – as do defendants in non-self-defense cases.
The substantive plea that a defendant enters at the outset of every criminal case is always the same: “Guilty” or “Not Guilty.”
A plea of “Not Guilty” can mean many different things, most of which do not apply to self-defense cases.
A “Not Guilty” plea can mean the defendant is claiming:
|
Vertical Divider
|
(i) factual innocence (e.g., “I didn’t do it”);
(ii) insufficient evidence exists to support a conviction (e.g., “you [the government] can’t prove – through admissible evidence – that I committed a crime”); (iii) the statute under which the defendant is being prosecuted is unconstitutional; (iv) prosecution is barred by the statue of limitations, or (v) there is legal justification for commission of the charged acts (e.g., “I committed the acts which constitute the offense, but some other fact(s) negates criminal liability (e.g., I acted in self-defense)”). This type of defense is what’s known as an “affirmative” defense, “affirmative” because the defendant admits committing the acts, but alleges having been legally justified in doing so. |
To obtain a conviction, the government – in every criminal prosecution – bears both the burden to prove the defendant’s guilt beyond a reasonable doubt and the burden to present evidence.
In every criminal case, the government is the first party to present evidence. For example, in a hypothetical murder case, the government would likely present evidence that the defendant was armed and that the defendant shot and killed the decedent (e.g., “victim”). The defense, during cross-examination of government witnesses (both lay witnesses and expert witnesses), might challenge the government’s evidence by, for example, trying to show that witnesses for the prosecution are not credible or that the physical evidence offered by the prosecution isn’t reliable or simply doesn’t prove what the prosecution would like it to prove, thus creating reasonable doubt as to the defendant’s guilt.
After the government has finished presenting its case, the defendant is given an opportunity to present his defense. In non-self-defense cases, such evidence might include calling defense witnesses (both lay witnesses and expert witnesses) whose testimony (further) brings into question the reliability of, or directly contradicts, the evidence that was offered by the prosecution. Just as the defense had an opportunity to cross-examine the prosecution’s witnesses, so too, the prosecution is given an opportunity to cross-examine defense witnesses.
Up to this point, trial procedure for non-self-defense and self-defense cases is identical.
But now, procedurally, things change. The defendant in our hypothetical murder case, by alleging the affirmative defense of self defense has, by definition, admitted that he used a firearm to shoot and kill the decedent (e.g., “victim”).
Because the self-defense defendant, as compared to the government, has superior access to evidence relating to self defense (e.g., defendant’s potential testimony), the burden to produce evidence on the issue of self defense – but not the burden to prove innocence – shifts from the government to the defense.
The government, in the presentation of its case, might very well have (inadvertently) offered evidence that the defendant acted in self defense. However, in the abstract, it is much more probable that the defendant will be better situated to offer evidence of self defense. The best form of such evidence is often the defendant’s testimony.
After the defendant produces evidence of self defense, the burden to produce evidence then shifts back to the government, requiring the government to negate, if it can, any reasonable doubt as to whether the defendant acted in self defense.
What constitutes appropriate or sufficient evidence of self defense will be determined by the law of the jurisdiction (e.g., state) in which the defendant is being tried.
Thus, we see that, unlike in non-self-defense cases, where the default position is that defendants do not testify, the default position in self defense cases is that such defendants do testify.
In every criminal case, the government is the first party to present evidence. For example, in a hypothetical murder case, the government would likely present evidence that the defendant was armed and that the defendant shot and killed the decedent (e.g., “victim”). The defense, during cross-examination of government witnesses (both lay witnesses and expert witnesses), might challenge the government’s evidence by, for example, trying to show that witnesses for the prosecution are not credible or that the physical evidence offered by the prosecution isn’t reliable or simply doesn’t prove what the prosecution would like it to prove, thus creating reasonable doubt as to the defendant’s guilt.
After the government has finished presenting its case, the defendant is given an opportunity to present his defense. In non-self-defense cases, such evidence might include calling defense witnesses (both lay witnesses and expert witnesses) whose testimony (further) brings into question the reliability of, or directly contradicts, the evidence that was offered by the prosecution. Just as the defense had an opportunity to cross-examine the prosecution’s witnesses, so too, the prosecution is given an opportunity to cross-examine defense witnesses.
Up to this point, trial procedure for non-self-defense and self-defense cases is identical.
But now, procedurally, things change. The defendant in our hypothetical murder case, by alleging the affirmative defense of self defense has, by definition, admitted that he used a firearm to shoot and kill the decedent (e.g., “victim”).
Because the self-defense defendant, as compared to the government, has superior access to evidence relating to self defense (e.g., defendant’s potential testimony), the burden to produce evidence on the issue of self defense – but not the burden to prove innocence – shifts from the government to the defense.
The government, in the presentation of its case, might very well have (inadvertently) offered evidence that the defendant acted in self defense. However, in the abstract, it is much more probable that the defendant will be better situated to offer evidence of self defense. The best form of such evidence is often the defendant’s testimony.
After the defendant produces evidence of self defense, the burden to produce evidence then shifts back to the government, requiring the government to negate, if it can, any reasonable doubt as to whether the defendant acted in self defense.
What constitutes appropriate or sufficient evidence of self defense will be determined by the law of the jurisdiction (e.g., state) in which the defendant is being tried.
Thus, we see that, unlike in non-self-defense cases, where the default position is that defendants do not testify, the default position in self defense cases is that such defendants do testify.
II. Issues Relating to the Defendant
(A.) Testimonial Skills:
One of the major considerations in deciding whether a self-defense defendant should testify is whether the defendant is capable of giving persuasive testimony.
Giving persuasive testimony is a skill, like many other skills. It requires, of course, the ability to give truthful testimony; however, not all truthful testimony is persuasive.
The ability to give persuasive testimony does not mean a person must be highly educated. Police officers, many of whom have little or no college education, often give highly persuasive testimony. Almost all police officers have received at least some training to develop their skills as a witness.
Some highly educated, knowledgeable, and degreed individuals, on the other hand, lack the skills needed to give persuasive testimony. This, however, does not describe the expert witnesses whom the government can be expected to call in support of their case. Such witnesses are almost always quite skilled in giving persuasive testimony.
A self-defense defendant’s defense team will likely try to prepare the defendant to testify. Such preparation is intended to prepare the defendant to give truthful, persuasive testimony. It is not intended, as the saying goes, to prepare the defendant to “Test-A-Lie” (as opposed to “testify”).
Some people possess a greater innate ability to provide persuasive testimony, as compared to others. Nevertheless, the ability to develop a degree of skill which enables one to give persuasive testimony is easily within the capability of most people.
Giving persuasive testimony is a skill, like many other skills. It requires, of course, the ability to give truthful testimony; however, not all truthful testimony is persuasive.
The ability to give persuasive testimony does not mean a person must be highly educated. Police officers, many of whom have little or no college education, often give highly persuasive testimony. Almost all police officers have received at least some training to develop their skills as a witness.
Some highly educated, knowledgeable, and degreed individuals, on the other hand, lack the skills needed to give persuasive testimony. This, however, does not describe the expert witnesses whom the government can be expected to call in support of their case. Such witnesses are almost always quite skilled in giving persuasive testimony.
A self-defense defendant’s defense team will likely try to prepare the defendant to testify. Such preparation is intended to prepare the defendant to give truthful, persuasive testimony. It is not intended, as the saying goes, to prepare the defendant to “Test-A-Lie” (as opposed to “testify”).
Some people possess a greater innate ability to provide persuasive testimony, as compared to others. Nevertheless, the ability to develop a degree of skill which enables one to give persuasive testimony is easily within the capability of most people.
(B.) Bad and/or Collateral Facts:
Another consideration relates to the issue of “bad” or “collateral” facts and whether, as mentioned above, the self-defense defendant can give truthful, persuasive testimony which is reasonably likely to mitigate or overcome these facts.
Such “bad” or “collateral” facts might include:
- Modifications to the firearm that was used in the self-defense incident;
- Evidence that the defendant has what might reasonably be perceived as an anger management problem;
- Controversial pre-incident statements made by the defendant (e.g., social media posts, etc.);
- Controversial slogans on the defendant’s clothing, bumper stickers, etc.
The government can be expected to attempt to exploit anything it can in its attempt to paint a self-defense defendant as some type of gun nut, reckless person who was looking for an excuse to shoot someone, or the like. A prudent person who carries a firearm for self defense will, through their everyday conduct, consciously refrain from supplying the government with this type of inflammatory, albeit questionably relevant, evidence.
Conclusion
The general “rule” is that most (non-self-defense) criminal defendants should probably not testify at trial. In self-defense cases, on the other hand, the general “rule” is that most defendants probably should testify at trial, as such defendants are likely the only source of certain evidentiary facts.
Nevertheless, general rules are just that. Both the facts and people involved in each case are different from every other such case. Accordingly, whether a defendant should testify in any particular criminal case is a decision that must be made on a case-by-case basis.
Nevertheless, general rules are just that. Both the facts and people involved in each case are different from every other such case. Accordingly, whether a defendant should testify in any particular criminal case is a decision that must be made on a case-by-case basis.
This article also appeared in a May 2024 newsletter published by the Armed Citizens Legal Defense Network
Lapin Law Group is Your Texas Law Firm - from Jailhouse to Courthouse
Call us today at 877.570.2200
CLICK HERE to send us an email
DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.
Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.
