When I Put a Client on the Stand, and Why It Is Almost Never

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Almost every client asks me the same question in the first meeting: when do I get to tell my side. The honest answer is that in most trials he never does, and that the case is usually better for it. This is the decision clients understand least and resent most, so it is worth explaining properly rather than announcing on the morning it has to be made.

What follows is how I approach it: whose decision it is, why the answer is almost always no, what it costs when the answer is yes, the narrow situations where I have advised a client to take the stand, and what I do to protect him when he does not. The governing rules appear on the right to remain silent page.

Whose Decision It Is

Mine is the advice. His is the decision. A criminal defendant has a fundamental right to testify on his own behalf, and if he gives that right up the waiver has to be knowing and voluntary, made with sufficient awareness of the circumstances and the likely consequences. Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 639 to 640 (1990), citing Brady v. United States, 397 U.S. 742, 748 (1970).

The statute says the same thing from the other direction. A defendant shall at his own request, but not otherwise, be allowed to testify, and his neglect or refusal to testify shall not create any presumption against him. G.L. c. 233, § 20, Third. He cannot be made to take the stand and he cannot be punished for staying off it.

Because it is his decision, my job is to make sure he is deciding with real information rather than with the version he has assembled from television. That means telling him plainly what the cross-examination will look like, what the jury will hear about his record, and what the alternative is. A client who says yes without knowing those three things has not really decided anything.

Why the Answer Is Almost Always No

The moment my client takes the stand, the trial stops being about whether the Commonwealth proved its case and starts being about whether the jury believes him. That is a trade I almost never want. The burden does not shift as a matter of law, but it shifts in the room, and no instruction fully undoes it.

He is also the worst-prepared witness in the building. Every other witness has testified before, or has been prepared by a lawyer who does this weekly, or is a police officer who has been cross-examined a hundred times. My client has been thinking about this for eight months, is frightened, and wants to explain. Wanting to explain is exactly the instinct that a competent prosecutor uses to take a case apart.

And he will be asked about things I have kept out. A defendant who testifies opens subjects that were unavailable while he stayed silent. Motions I won before trial can be worth very little by the middle of a cross-examination, because the question changes from whether the evidence is admissible against him to whether it contradicts what he just said.

What It Costs Him

The clearest cost is the record. A witness’s prior criminal convictions may be used to impeach credibility within the limits set by G.L. c. 233, § 21, and a defendant who testifies becomes a witness. A record that the jury would never have heard about becomes something they hear about, in the prosecutor’s voice, on the second day of trial.

The statutory limits matter here and they are worth checking case by case rather than assuming. A misdemeanor conviction may not be shown after five years from the date sentence was imposed, and the felony limits run ten years from the conviction, the sentence, or the expiration of the minimum term, depending on what was imposed. Those limits are lifted where the witness has been convicted of another crime within the corresponding period.

So before I advise anyone, I pull the record and I do the arithmetic. Whether a fourteen year old conviction comes in can decide the entire question, and that is not something to work out at counsel table while the Commonwealth is resting. The detail on how the impeachment itself is conducted appears on the cross-examination page.

The Times I Have Said Yes

There is a narrow set of cases where the client has to testify, and they share a feature: some element of the defense exists only inside his head and cannot be proved any other way.

The clearest is self-defense. What he reasonably feared, what he believed at the moment he acted, and why he did not retreat are all facts about his own mind. Witnesses can describe what the fight looked like from outside. Only he can say what it looked like from inside, and without that the defense often does not get to the jury at all.

The second is consent, where the entire case turns on an interaction between two people and one of them has already testified. The third is a specific-intent charge where the conduct is admitted and the only live question is what he meant by it. The fourth is a case where the Commonwealth has put in a statement of his that is incomplete in a way I cannot cure through anyone else.

Outside those, I am looking for a reason not to. A client who simply wants to deny the charge is not giving the jury anything they do not already have from the presumption of innocence, and he is paying for the privilege with his record and his composure.

How I Prepare Him If He Testifies

I do not rehearse answers. I prepare him for the shape of the thing: that the prosecutor will ask short questions, that she will not let him explain, that she will move fast, and that the worst moment will come near the end when he is tired. A client who expects that is far harder to unsettle than one who has memorized a story.

I make him practice saying that he does not remember, and I make him practice saying it without apologizing for it. Most people find that unbearable and offer a guess instead. A guess that turns out to be wrong gives the prosecutor a provable error to work with, and an innocent client has handed it over for nothing.

I also tell him what I will not do. I will not signal him, I will not rescue him mid-answer, and I will not object to make a point. He is on his own out there for as long as it takes, and knowing that in advance is part of deciding whether he wants to go.

The Instruction I Ask For When He Does Not

When my client does not testify, I usually ask the judge to instruct the jury that no adverse inference may be drawn from that choice. On a proper request, a state trial judge has a constitutional obligation to give that instruction. Carter v. Kentucky, 450 U.S. 288, 305 (1981).

Usually, but not always, and the exception is the reason this has to be discussed with the client rather than decided by habit. Some defendants would rather the judge never mention it, on the view that naming the silence draws attention to it. That choice is available and it is enforceable: it is reversible error for a judge to instruct on the right not to testify where the defendant has asked that no such instruction be given. Commonwealth v. Buiel, 391 Mass. 744, 746 (1984).

So I ask the client which he wants, I tell him my recommendation, and I put his answer on the record before the charge conference. It is a small thing that takes two minutes and it forecloses an argument years later about what he was told.

When the Decision Gets Made

Not at the first meeting, and not before trial. Whether my client testifies is a tactical decision that depends on how the Commonwealth’s case came in, and the Commonwealth’s case regularly comes in weaker than the file predicted. A witness who was going to be devastating does not remember. An officer contradicts his own report. Half the reason to testify evaporates during the prosecution’s own evidence.

So I tell the client at the start that we will decide when the Commonwealth rests, that I will give him my recommendation then, and that the decision will be his. I do not promise him an answer earlier, because an answer given earlier is a guess.

That is also why my opening statement never suggests he will testify. Promising his testimony in the opening takes the decision away from him before the first witness is sworn, and it hands the prosecutor a broken promise to argue about if the answer turns out to be no.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.