# Lawyers: Why would an innocent person avoid testifying?
**URL:** https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937
**Category:** Factual Questions
**Created:** [August 6, 2014, 11:19am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937 "2014-08-06T11:19:05Z")
**Posts on this page:** 20
**Page:** 3
### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [August 6, 2014, 7:27pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/41 "2014-08-06T19:27:45Z")
> [@BeepKillBeep](#):
>
> I was kind of thinking the same thing.
>
> I thought perhaps if they had something which absolutely proved their innocence, but if such a fact could be presented, you would think it would never have gone to trial. Why would a prosecutor bother?
> [@Fotheringay-Phipps](#):
>
> As above, they would do it if the everything else is going against them and it’s a Hail Mary longshot worth taking, and/or if they might make a convincing or sympathetic impression.
>
> Jodi Arias took the stand, and while it was unsuccessful, it was a worthwhile gamble, IMO. Everything else pointed to her guilt and her only shot was at making an impression with her poor-little-girl sob story of being abused and so on.
That’s the main thing - if the person really needs to take the stand, it’s because the facts don’t demonstrate the story they want to tell. Otherwise, the facts speak for themselves. If “I wasn’t there” is the claim, telling the story isn’t really going to prove it… but then again, it’s the prosecution’s job to prove you were there, not your job to prove you were not. If the truth sounds like a concocted alibi, telling it only works if you’re a really good actor.
So if the facts don’t bear out “I was abused” then it only works if the person is a convincing actor.
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### Author:  [@outlierrn](https://boards.straightdope.com/u/outlierrn)
#### Post date: [August 6, 2014, 8:54pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/42 "2014-08-06T20:54:55Z")
Recently I was at a medical record workshop put on by my hospital’s attorney. He said that according to studies, 70-80% of jurors have made up their minds at the end of _opening_ statements, and thereafter confirmation bias their way through the evidence.
Now, I don’t know how good those ‘studies’ are, or whether they apply just to malpractice or more broadly, but _giving away as little as possible to the other side_ seems a sound legal strategy.
IMHO, IANAL
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### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [August 6, 2014, 9:21pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/43 "2014-08-06T21:21:48Z")
I can’t imagine how those studies might have been conducted.
From glancing around a bit, it looks like the origin of that claim is a book published in 1966 called _The American Jury_, by Hans Zeisel and Harry Kalven. Some claim that this is a distortion of what is actually claimed in that book (or that the claim is wrong, anyway).
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [August 6, 2014, 9:31pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/44 "2014-08-06T21:31:27Z")
> [@Fotheringay-Phipps](#):
>
> Jodi Arias took the stand, and while it was unsuccessful,
. . .it made for some great TV.
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### Author:  [@bibliophage](https://boards.straightdope.com/u/bibliophage)
#### Post date: [August 6, 2014, 10:07pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/45 "2014-08-06T22:07:52Z")
> [@bob\_2](#):
>
> In fiction, it is usually to avoid being cross examined. We don’t have the 5th over here, so by not going on the stand, a defendant can avoid answering awkward questions like - Did you do it?
It’s pretty much the same over here where we do have the fifth amendment. A defendant can’t be compelled to take the stand, but if he does voluntarily take the stand in his own defense, he opens himself to cross-examination by the prosecution. Under those circumstances, he can’t refuse to answer the prosecutor’s questions claiming his fifth-amendment rights. By taking the stand, he has essentially waived his right against self-incrimination in relation to topics covered in the direct examination.
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### Author:  [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)
#### Post date: [August 6, 2014, 10:21pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/46 "2014-08-06T22:21:22Z")
Another reason for keeping the defendant off the stand is that the prosecutor can try to get the defendant to say something that will allow in some previously disallowed piece of evidence.
If the judge says that the prosecutor cannot mention any of an accused rapist’s former girlfriends, and then the defendant gets on the stand and says he never would have had sex with the accuser because she has short hair, and he doesn’t like women with short hair; the prosecutor may then get to show the jury a picture of the defendant with an ex-girlfriend who had short hair, and, Oh my! a black eye! in the picture. Whether the defendant was responsible for the black eye or not, that picture is going to effect the jury’s perception of the defendant.
That’s not a great example, but it’s the best I can do on short notice. I have a cousin who works for a prosecutor’s office-- maybe I can get a better one. But you get the idea.
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### Author:  [@Asimovian](https://boards.straightdope.com/u/Asimovian)
#### Post date: [August 6, 2014, 11:36pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/47 "2014-08-06T23:36:01Z")
> [@BeepKillBeep](#):
>
> I was kind of thinking the same thing.
>
> I thought perhaps if they had something which absolutely proved their innocence, but if such a fact could be presented, you would think it would never have gone to trial. Why would a prosecutor bother?
If there is some fact that is absolutely going to prove the defendant didn’t commit the crime, then there’s going to have to be someone other than the defendant who can testify to that fact. If he or she were somewhere else when the crime occurred, for example, then there should be someone or some piece of evidence (video, cell records, etc.) to corroborate that. In which case, the defendant still doesn’t testify. If the defendant is the ONLY person who can provide his own exoneration, that’s a problem all by itself.
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### Author:  [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)
#### Post date: [August 6, 2014, 11:46pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/48 "2014-08-06T23:46:37Z")
When I was on a jury, the defense attorney asked everyone in voir dire if they understood that the defense wasn’t required to put on a case, and the burden of proof was entirely with the prosecution. Most people said that yes, they did, but there were a couple of people who said something like they felt they needed to “hear both sides of the story.” Those people all got dismissed. I think a few of them toward the end had caught on to the fact that it was a way to get dismissed, and said it for that reason, but the defense definitely tries to weed out people who don’t quite get the concept of the “burden of proof.” The defense attorney explained it pretty thoroughly in the speech he made before he even asked any questions.
The less the defense does, the less ammunition the defense gives the prosecution.
I also think that while there are some people who think that only a guilty person refuses to take the stand, there are just as many people who have seen enough TV cop and law shows to be suspicious of someone who takes the stand as someone who feels he needs to “sell” himself because he has the extra burden of actual guilt.
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### Author:  [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)
#### Post date: [August 6, 2014, 11:49pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/49 "2014-08-06T23:49:55Z")
That’s interesting. My initial bias would be the exact opposite, although I would hope that if I were on a jury I could put my bias aside. My bias, as evidenced by my OP, is that a person taking the stand is more likely to be innocent.
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [August 6, 2014, 11:52pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/50 "2014-08-06T23:52:28Z")
> [@Asimovian](#):
>
> If the defendant is the ONLY person who can provide his own exoneration, that’s a problem all by itself.
You just gotta take my word, some other dude did it.
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### Author:  [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)
#### Post date: [August 6, 2014, 11:58pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/51 "2014-08-06T23:58:37Z")
I’ve decided to start a poll. I’m curious what other people think.
> **[What is your bias: Innocent or Guilty if a defendant testifies?](https://boards.straightdope.com/sdmb/showthread.php?t=730451)**
>
> I’m curious. I started this thread. http://boards.straightdope.com/sdmb/showthread.php?t=730395 and it has been suggested that some jurors would be inclined to find somebody guilty if they testify on their own behalf due to the burden of guilt....
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### Author:  [@Asimovian](https://boards.straightdope.com/u/Asimovian)
#### Post date: [August 7, 2014, 12:01am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/52 "2014-08-07T00:01:07Z")
> [@kayaker](#):
>
> You just gotta take my word, some other dude did it.
Rest assured that if I were a juror in YOUR criminal trial, your word would be as good as gold with me. It’s the other 11 folks you gotta worry about…I’m very vulnerable to peer pressure.
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### Author:  [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)
#### Post date: [August 7, 2014, 12:36am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/53 "2014-08-07T00:36:15Z")
> [@Velocity](#):
>
> With all this, I’m starting to wonder; is there ever a time when it would be \*\*\*good \*\*\*for an innocent defendant to testify?
It’s been said that, if your lawyer charges $25,000 to defend you, $24,000 of the fee is for deciding whether or not to have you testify.
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### Author:  [@DingoelGringo](https://boards.straightdope.com/u/DingoelGringo)
#### Post date: [August 7, 2014, 12:42am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/54 "2014-08-07T00:42:59Z")
> [@BeepKillBeep](#):
>
> First, I’m not saying that a person who doesn’t testify on their own behalf is guilty. I am curious though. If a person knows they are innocent, is there a reason they would avoid testifying? I ask because I’m sure there are reasons which just aren’t obvious to me, but are obvious to you. Thanks!!
Some people don’t have the personality to testify. I was in my lawyer’s office 30 years ago and a young drug lord was walking out Bob, the lawyer was laughing his ass off. "I told him I wouldn’t be putting him on the stand, and he told me ‘You can put me on, I am very effluent, very very effluent.’ "
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [August 7, 2014, 4:05am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/55 "2014-08-07T04:05:07Z")
> [@Asimovian](#):
>
> Rest assured that if I were a juror in YOUR criminal trial, your word would be as good as gold with me. It’s the other 11 folks you gotta worry about…I’m very vulnerable to peer pressure.
Please stay strong; I like my juries like Kim Kardashian likes her men.😃
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### Author:  [@buddy431](https://boards.straightdope.com/u/buddy431)
#### Post date: [August 7, 2014, 5:35am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/56 "2014-08-07T05:35:00Z")
So what percentage of defendants do take the stand? In the one trial I’ve been a jury member on, the defendant did.
He was very persuasive, basically blamed his housemates. We acquitted him (I thought he was lying, but me “thinking” he is lying isn’t he standard needed to convict). If he hadn’t, would we have made the same decision? I don’t know. But again, it was a case where there was ample evidence that a crime had been committed, and by getting on the stand, he was able to reinforce the idea that maybe it wasn’t him who committed it.
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### Author:  [@Orwell](https://boards.straightdope.com/u/Orwell)
#### Post date: [August 7, 2014, 11:13am UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/57 "2014-08-07T11:13:15Z")
> [@kayaker](#):
>
> Please stay strong; I like my juries like Kim Kardashian likes her men.😃
Black, conceited and dumb? I guess it depends on the crime.
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### Author:  [@Quercus](https://boards.straightdope.com/u/Quercus)
#### Post date: [August 7, 2014, 2:05pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/58 "2014-08-07T14:05:25Z")
Just had to add:
[QUOTE=Lefty Frizzel, Johnny Cash, and others]
The Judge said “Son, what is your alibi?
If you were somewhere else, then you don’t have to die.”
I said not a word, though it meant my life,
For I was in the arms of my best friend’s wife.
[/QUOTE]
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 7, 2014, 2:13pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/59 "2014-08-07T14:13:06Z")
> [@buddy431](#):
>
> So what percentage of defendants do take the stand? In the one trial I’ve been a jury member on, the defendant did.
Depends on the jurisdiction, and moreso on the severity of the offense charged, but somewhere around half.
> [@](#):
>
> Gordon Van Kessel, Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence, 35 Ind. L. Rev. 925, 950-51 (2002) (summarizing studies dating back to the 1920s and concluding that “with increasing frequency defendants are not taking the stand at trial as they once did” and “the extent of refusals to testify varies from one-third to well over one-half [of defendants] in some jurisdictions”); Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 Val. U. L. Rev. 311, 329-30 (1991) (describing study of trials in Philadelphia in the 1980s that revealed that 49% of felony defendants and 57% of misdemeanor defendants chose not to testify); Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1450, 1459 (2005) (noting that “only half” of the defendants who proceed to trial testify on their own behalf).
>
> Jeffrey Bellin, Improving the Reliability of Criminal Trials Through Legal Rules That Encourage Defendants to Testify, 76 U. Cin. L. Rev. 851, 897 (2008).
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [August 7, 2014, 2:55pm UTC](https://boards.straightdope.com/t/lawyers-why-would-an-innocent-person-avoid-testifying/694937/60 "2014-08-07T14:55:52Z")
> [@Orwell](#):
>
> Black, conceited and dumb? I guess it depends on the crime.
Hung.
Was I wooshed or were you?
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