Defendant as a witness

Defendant as a witness

Deciding whether to call the defendant as a witness can be a difficult task. The attorney may think it advisable, for various reasons, to keep the client off the witness stand. Among the significant considerations are:

• Whether the defendant will be impeached by prior convictions;
• Other proof of the facts in question;
• The impression the defendant will make on the jury;
• The strength of the prosecution case; and
• The strength of the prosecution's rebuttal if the defendant is called.

If the defendant does not take the stand, he or she will have to overcome any suspicion on the part of the jury that the defendant would testify if he or she did not have something to hide. Counsel should have questioned the prospective jurors on voir dire about their ability to find for the defendant even if he or she chooses to exercise the right not to testify.FN55 If the prosecutor presented a strong and seemingly convincing case, and if there are no defense witnesses other than the defendant, calling the defendant to testify may be necessary.

Calling the defendant to testify may be particularly damaging where prior felony convictions may be introduced as evidence to impeach the defendant's testimony.FN56 As a rule, prior convictions that cast doubt on the credibility of the defendant can be used against him or her unless they are unduly prejudicial.