# If the defendant takes the stand in a felony trial
**URL:** https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560
**Category:** In My Humble Opinion
**Created:** [July 24, 2019, 5:53pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560 "2019-07-24T17:53:03Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@bizerta](https://boards.straightdope.com/u/bizerta)
#### Post date: [July 24, 2019, 5:53pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/1 "2019-07-24T17:53:03Z")
When I watch TV shows and the defendant takes the stand, their attorney always asks, “Did you murder Joseph Smith?”. The defendant always says, “ABSOLUTELY NOT”, and they always say “absolutely”. Does this really happen at felony trials? As he has pleaded “not guilty”, it stands to reason that he would lie if he did commit the crime? So why ask such a stupid question?
IMHO, the defendant using “absolutely” would make me lean towards a guilty verdict.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [July 24, 2019, 6:16pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/2 "2019-07-24T18:16:28Z")
In real (U.S) trials, defendants don’t testify. But a prosecutor wouldn’t ask the defendant if he murdered someone anyway; that’s a term of art.
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### Author:  [@Just\_Asking\_Questions](https://boards.straightdope.com/u/Just_Asking_Questions)
#### Post date: [July 24, 2019, 7:17pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/3 "2019-07-24T19:17:38Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> In real (U.S) trials, defendants don’t testify. But a prosecutor wouldn’t ask the defendant if he murdered someone anyway; that’s a term of art.
What do you mean, defendants don’t testify? Of course they do. Not every time. But often enough.
The defense’s lawyer can and should ask if the defendant did the crime, but only if the defendant did not already admit to his lawyer that he is in fact guilty. Otherwise it would be unethical.
If the defendant’s lawyer didn’t ask, the prosecutor certainly would on cross examination.
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### Author:  [@xizor](https://boards.straightdope.com/u/xizor)
#### Post date: [July 24, 2019, 7:19pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/4 "2019-07-24T19:19:42Z")
For some reason, I can still vividly remember when OJ Simpson was charged with murder and when the judge asked “how do you plea?” he responded “Absolutely 100% not guilty”
So, not on the stand but defendants do say “absolutely” in court.
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### Author:  [@jz78817](https://boards.straightdope.com/u/jz78817)
#### Post date: [July 24, 2019, 7:23pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/5 "2019-07-24T19:23:31Z")
> [@Just\_Asking\_Questions](#):
>
> What do you mean, defendants don’t testify? Of course they do. Not every time. But often enough.
it’s more accurate to say that “defendants cannot be _compelled_ to testify.” And AFAIK in general it’s usually advised that they don’t.
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### Author:  [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)
#### Post date: [July 24, 2019, 7:27pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/6 "2019-07-24T19:27:09Z")
I’ve been involved in exactly one criminal trial (jury) and the defendant did, in fact, testify. I do not believe his attorney asked point blank if he committed the crime in question.
Furthermore, IANAL, but I understand that the defendant’s plea is not testimony. You could be charged with perjury if you answered “Absolutely not” and you did actually kill him. You could not be charged with perjury merely for pleading “Not Guilty” to the charge.
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [July 24, 2019, 7:36pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/7 "2019-07-24T19:36:43Z")
That’s because when you plead not guilty, you are not saying, “I didn’t do it,” you’re saying “the government can’t prove I did it.”
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [July 24, 2019, 7:43pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/8 "2019-07-24T19:43:29Z")
And the question the lawyer is asking might or might not precisely correspond to the crime in question. A defendant might answer “Yes, I killed so-and-so”, but still plead not guilty, because it was in self-defense (or at least, so the defendant claims).
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [July 24, 2019, 8:10pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/9 "2019-07-24T20:10:09Z")
> [@Just\_Asking\_Questions](#):
>
> What do you mean, defendants don’t testify? Of course they do. Not every time. But often enough.
Almost never. The only time putting a defendant on the stand is a good idea is when there is a mountain of other evidence putting the defendant at the crime scene already and the focus is an affirmative defense (e.g., self-defense).
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### Author:  [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)
#### Post date: [July 25, 2019, 1:03pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/10 "2019-07-25T13:03:13Z")
Supposedly, 10% of a defense attorney’s bill is for his knowledge of the law, and 90% is for his decision to put/not put the defendant on the stand.
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### Author:  [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)
#### Post date: [July 25, 2019, 1:35pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/11 "2019-07-25T13:35:53Z")
I can sort of see the impulse to be emphatic, considering the alternative:
“Did you kill John Smith on February fourteenth of this year?”
“Sorry, who?”
“John Smith.”
“What was the last name?”
“Smith.”
“Spell that for me?”
“S-M-I-T-H.”
“And what was that date again?”
The fourteenth of last February."
“Ah. Well. Hmm. To the best of my recollection, no.”
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### Author:  [@pkbites](https://boards.straightdope.com/u/pkbites)
#### Post date: [July 25, 2019, 2:16pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/12 "2019-07-25T14:16:30Z")
> [@bizerta](#):
>
> IMHO, the defendant using “absolutely” would make me lean towards a guilty verdict.
Interesting. The instructors for the Reed Technique of interviewing said subjects that used words like that instead of just saying “no” were usually guilty.
But I have no idea where they got their data from.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [July 25, 2019, 2:23pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/13 "2019-07-25T14:23:47Z")
I can’t imagine the defense lawyer being allowed to ask the defendant point-blank if he committed the crime. Even a first-time defense attorney would immediately object, and it would be sustained.
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### Author:  [@kopek](https://boards.straightdope.com/u/kopek)
#### Post date: [July 25, 2019, 2:35pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/14 "2019-07-25T14:35:03Z")
Lets say you are on trial and decide to testify; we’ll leave your guilt or innocence out of it. What you are doing is trying to sway the jury (or at least one juror) to your side. Human nature is to try to add superlatives to get your point across. It is probably wrong but it is indeed human nature.
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [July 25, 2019, 2:37pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/15 "2019-07-25T14:37:34Z")
> [@RealityChuck](#):
>
> I can’t imagine the defense lawyer being allowed to ask the defendant point-blank if he committed the crime. Even a first-time defense attorney would immediately object, and it would be sustained.
TWO defense attorneys?😛
That is actually one of the speicifc exceptions to the rule against leading questions in direct examination… eliciting a denial from an accused. The judge would be mighty pissed off at such an objction.
> [@Really\_Not\_All\_That\_Bright](#):
>
> Almost never. The only time putting a defendant on the stand is a good idea is when there is a mountain of other evidence putting the defendant at the crime scene already and the focus is an affirmative defense (e.g., self-defense).
Yes. In actual practice its pretty rare to see an accused on the stand, many practitioners go through dozens of trials without it. Hell even in self-defence cases a lot of time they issue of self-defence gets raised during the prosecution case itself.
Same way with alibi evidence, its basically never comes up at trial.
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### Author:  [@Doctor\_Jackson](https://boards.straightdope.com/u/Doctor_Jackson)
#### Post date: [July 25, 2019, 2:57pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/16 "2019-07-25T14:57:17Z")
> [@BrotherCadfael](#):
>
> Supposedly, 10% of a defense attorney’s bill is for his knowledge of the law, and 90% is for his decision to put/not put the defendant on the stand.
That made me smile. I get what the saying means, but this being the Pedantic Dope, I have to point out that in the US t[he decision on whether the defendant testifies is completely their own](https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion234.cfm). The lawyer can (and likely will) strongly advise against it but cannot prevent his client from testifying.
> [@](#):
>
> First, Rule 3.3(b) comes into play when a lawyer “knows” that his client, the accused in a criminal case, intends to testify falsely. That requirement is met here, as the attorney’s own investigation was confirmed by his client’s admission.[8]
>
> Second, once the Rule comes into play, the lawyer must make a good-faith effort to dissuade the client from testifying falsely. This was done here, but to no avail.
>
> Third, if the lawyer is unable to dissuade the client from giving false testimony, he must seek leave of the tribunal to withdraw unless withdrawal would seriously harm the client…
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### Author:  [@Moriarty](https://boards.straightdope.com/u/Moriarty)
#### Post date: [July 25, 2019, 6:09pm UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/17 "2019-07-25T18:09:43Z")
> [@RealityChuck](#):
>
> I can’t imagine the defense lawyer being allowed to ask the defendant point-blank if he committed the crime. Even a first-time defense attorney would immediately object, and it would be sustained.
I’m curious what you imagine the objection to be.
…
As already explained, the decision to testify or not is exclusively that of the Defendant, not the attorney (this is an exception from the usual rule that the lawyer makes the tactical decisions, such as who to call as a witness and what questions to ask). This is, in fact, emphasized at trial - usually, at some break in the case, the court will advise the Defendant of this right, but not actually require the Defendant to make the decision until right before it would be relevant (e.g. after the prosecutor has rested the state’s case, and it is now up to the defense to decide if they will call witnesses).
Usually, a defense attorney will counsel against having the witness testify. Why? Lots of reasons:
For one, most people accused of crimes are, in fact, guilty. Why put a person on the stand who clearly did the deed, so that the prosecutors can pepper them with questions? There’s no benefit.
Besides, testifying under oath can be very stressful. Many defendants are not well educated. They may be excitable, or have a temper. These things are not necessarily relevant to the determination of guilt, but they will definitely color the jury’s feelings about the case. (As my boss once said about a celebrity client, better to have him sit at the table and let the jury think all sorts of things about him then have him testify and ‘ruin the illusion’ of his public persona).
Also, once the defendant testifies, he’s opened himself up to the prosecutor calling rebuttal witnesses to rebut whatever story he’s told.
And, if he has prior felonies or past evidence of dishonesty, that will be coming in, too.
But, sometimes, there are good reasons to let a defendant testify. Domestic cases involving harassment or threats are frequently “he said/she said” and juries want to hear both sides. If it’s the sort of fight where both people were equally hostile - and if you know that your client has no prior criminal history, is reasonably intelligent and sufficiently docile - you are probably wise to suggest that he testify.
Also, if the crime is one of intent (i.e. a business dispute, where the issue is not whether the Defendant took the money, but whether he did it in good faith, or whether it was his intent to steal), letting your client explain their motives might be helpful. (Once again, though, as a defense lawyer you have to be really concerned about the existence of any incriminating details - perhaps an email that essentially confirms that the client knew he was acting improperly - which will become the focus of cross-examination, along with whether the client is sophisticated enough to understand potentially tricky questions, whether the client is at risk of just getting pissed off any losing their shit on the stand, and whether the client has a history of crime or dishonesty that is going to show that he can’t be trusted).
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### Author:  [@Melbourne](https://boards.straightdope.com/u/Melbourne)
#### Post date: [July 26, 2019, 3:32am UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/18 "2019-07-26T03:32:47Z")
We had a high profile case here recently where the [Cardinal](https://en.wikipedia.org/wiki/Cardinal_(Catholic_Church)) was convicted. He did not take the stand and personally assert his innocence: he more or less depended on the authority and reliability of the Church as an indicator of his innocence. Possibly a bit of a mistake.
It’s been suggested that if he’d gone with a lawyer who wasn’t convinced he was innocent, and was less like himself, he might have got a better result
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### Author:  [@Velocity](https://boards.straightdope.com/u/Velocity)
#### Post date: [July 26, 2019, 5:05am UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/19 "2019-07-26T05:05:02Z")
> [@Do\_Not\_Taunt](#):
>
> You could be charged with perjury if you answered “Absolutely not” and you did actually kill him. You could not be charged with perjury merely for pleading “Not Guilty” to the charge.
True, but in a case as severe as murder, does the perjury matter? Whatever penalty a defendant could suffer for perjury is dwarfed by the penalty he/she would get for murder if convicted.
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### Author:  [@eschereal](https://boards.straightdope.com/u/eschereal)
#### Post date: [July 26, 2019, 5:27am UTC](https://boards.straightdope.com/t/if-the-defendant-takes-the-stand-in-a-felony-trial/837560/20 "2019-07-26T05:27:14Z")
What if the counsel asks, “_Did you know John Doe_”, and the defendant starts talking about Gary Cooper and winds into a lengthy, incoherent digression about who knows what. Would that serve to bolster a plea of “by reason of insanity”?
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