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Order in the Court! Tips on How to Act While on the Witness Stand

Howard Kurtz - 4/25/2014

Five Points to Remember when Testifying in Your Own Defense

Both the United States and North Carolina Constitutions prohibit a criminal defendant from being forced to testify against himself.  A defendant cannot be called to take the witness stand in his own trial unless he or she wishes to do so.  The defendant will not take the witness stand in the majority of cases, but testifying is sometimes necessary to offer an effective defense. 

There are several points of conduct defendants should keep in mind when testifying.  The first and most important is that the defendant should always tell the truth.  Setting aside the possibility of perjury charges (a felony punishable by prison time in North Carolina), both the judge and the assistant district attorney are professionals with considerable experience detecting and rooting out falsity. Many defendants are tempted to exaggerate their side of the story in order to appear less culpable - that strategy often has the opposite effect. Defendants should refrain from exaggeration because it presents a high risk of destroying their credibility, and because it is generally unnecessary.  If your attorney has judged that the case may lead to a not guilty verdict, trust in the attorney’s judgment.  A defendant who embellishes can quickly turn a winning case into a losing case.

Criminal Defendant on the Witness Stand

Another serious repercussion of changing the story on the stand is that the defense attorney may have to stop asking questions altogether.  A defense attorney is not allowed to elicit testimony that they know or strongly believe to be untrue.  If a defendant tells a materially different story on the stand than they have told to their lawyer previously, the lawyer must either withdraw from the case or ask to the judge to instruct the defendant to testify in a narrative, which means to tell the story without the guidance of questioning.  Having a defendant testify in the narrative is a clear indication to the judge that the defendant is lying.  Either of the above repercussions spells almost certain conviction for the defendant. 

The second point of conduct to remember is to always remain calm and polite while on the stand.  Exhibiting a positive demeanor indicates that the defendant is taking the procedure seriously and is cooperative in trying to elicit the truth.  The effect, in turn, is that the defendant’s credibility in the eyes of the judge or jury is bolstered.  If a defendant breaks from a positive demeanor and becomes aggressive, disrespectful, or loses her temper, she runs a very high risk of destroying her own credibility. 

Maintaining poise is not always an easy task, but it is an important one.  The DA on cross examination may intentionally attempt to rile or fluster a defendant or defense witness.  Attempting to turn a defendant aggressive or uncooperative is one of the oldest tricks in the book.  The most powerful weapon the testifying defendant has against the prosecutor is to remain calm and cooperative, always politely answering the questions even if intentionally provocative.  The defendant should trust her attorney to safeguard the proceedings if the DA’s questioning becomes impermissible.

The third point a testifying defendant should remember is to answer only the question that has been asked and not to volunteer any unnecessary information.  Direct examination, when the defense attorney is asking the defendant open-ended questions, is the defendant’s opportunity to tell her story in detail.  Cross-examination, on the other hand, often involves close-ended, yes-or-no questioning asked by the DA.  The defendant should answer truthfully, but keep answers to the bare minimum. On the stand, many defendants tend to hand over information they did not need to, and sometimes it can be incriminating.  Defendants frequently talk themselves into conviction in an attempt to outwit the process. 

The fourth point to remember is that the defendant should not answer any questions he does not understand or any questions that are close to the truth, but do not accurately reflect it.  There is nothing wrong with a defendant asking the interrogating attorney to clarify a question.  When on the stand, every answer counts.  If a question is confusing, there is no harm in asking for clarification.

Similarly the defendant should be on the lookout for questions that skew the truth.  For example, a defendant testified on direct that he was at a street corner for 25 minutes, but the prosecutor asks on cross whether the defendant was there “for about a half hour.”  The changed wording can be used to cast doubt on the defendant’s memory later in the proceeding.  A defendant faced with a question like the one above should say “no, it was not about a half hour.  It was 25 minutes.”  It is possible to remain polite and cooperative while still answering the question truthfully. 

The last major point a defendant should keep in mind when taking the stand is to think about answers before giving them.  There is no harm to the defendant’s credibility to take a moment to think about the answer to a tough or tricky question.  Thought-out answers tend to be more believable, are often perceived as more accurate than impulsive ones, and carry far less potential to be damaging.

In summary, the defendant taking the stand should always be truthful, polite, deliberate, and should trust in his attorney to defend him. 



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