When most people find themselves facing criminal charges, basic human instincts will kick in and they will want to try to talk themselves out of the predicament that they find themselves in. This usually happens early on in a criminal case when the police question you and want to get your side of the story. You always have the right to talk to the police and to testify at your trial, however, that may not always be the best strategy. In my 28-years of practicing criminal law, I can honestly say that the biggest mistake that most criminal defendants make is talking to the police. Sometimes, defendants continue making the same mistake and insist on testifying at trial. I want to talk about what your rights are when you are on trial and why you should think twice about talking to the police and testifying at trial.
The famous court case that discusses your right to remain silent is Arizona v. Miranda. The Miranda decision is famous because of Hollywood and TV crime shows. Everyone knows that the Miranda case gives you the right to remain silent and refuse to testify in court. But there is a little bit more to Miranda that people should be aware of. The Miranda case deals with the 5th Amendment to the United States Constitution. The Fifth Amendment states that you cannot be forced to be a witness against yourself. This means that you cannot be forced to tell on yourself. The Fifth Amendment in the United States Constitution is known as the Right Against Self Incrimination. The Fifth Amendment’s right to remain silent attaches the moment you are the subject of a custodial interrogation. What is critical in determining whether the Fifth Amendment applies to your case is whether you were in custody or not. Generally, whether you are in custody depends on whether an objective person feels that at the time you were questioned by the police, were you free to leave or not. Generally, if you are being questioned by the police and you were not free to leave, that would be a custodial interrogation which requires that you be advised of your right to remain silent and that you freely and voluntarily waive that right.
Your Fifth Amendment right to remain silent is different when it comes to testifying at trial. You are under no obligation to prove that you are not guilty at trial. The government, or the prosecution, has the burden of proving you guilty of each and every element of what you are being charged with Beyond A Reasonable Doubt. However, since you have the right to testify at your trial, only you can wave, or give up, your right to testify at trial. And since you have the right to wave your right to testify, only you can make the decision about whether you want to testify or not. Since you have the constitutional right to testify, or not, if you decide that you will not testify at trial, your decision to waive your right to testify cannot be used against you by the prosecution, judge, or jury. In other words, if you refuse to testify at your trial, if the prosecutor argues to a judge or jury that your refusal to testify shows that you are guilty, that would be improper and would likely lead to a mistrial for making those statements.
You cannot be forced to testify at your criminal trial. Since the decision about whether or not to testify at trial is yours, and yours alone, you should carefully consult with your lawyer prior to making that decision. You should understand what the risks and benefits to your case would be if you decided to testify. In most trials, if you decide that you will not testify at trial, the court will question you on the record to make sure that the decision is yours, and yours alone, and that you are making it freely and voluntarily. Whatever decision you make is yours, and cannot be changed. If you are found guilty at trial, you cannot go back to the court and ask for another chance to testify and tell your side of the story. Whether you should or should not testify at trial depends entirely on your specific case. In many criminal cases, your decision about weather you should or should not testify can end up being the difference between winning and losing your case. It’s a decision that has to be made with the utmost care and confidence.
James Dimeas is a nationally-recognized, award-winning, criminal defense lawyer, with over 28-years of experience handling criminal cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Years 2018, 2019, 2020, and 2021” by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney,” the “Best DUI Lawyer in Schaumburg,” and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by the National Trial Lawyers.” The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois.” James Dimeas is rated ‘Superb’ by AVVO, 10 out of 10, the highest classification possible for any criminal lawyer in the United States. The American Society of Criminal Law Attorneys recognized James Dimeas as a “10 Best Attorney for Client Satisfaction. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.”
If you are facing criminal charges in Illinois, you can contact James Dimeas anytime for free and confidential consultation. You can always talk to James Dimeas personally by calling him at 847-807-7405.
5th Amendment to the United States Constitution.
Miranda v. Arizona, 384 U.S. 436 (1966).
What is Double Jeopardy? Can I Be Retried Again?, by James G. Dimeas, Chicago Criminal Lawyer Blog, June 18, 2018.
What Happens If You Are Arrested? by James D. Dimeas, Chicago Area Criminal Lawyers, April 3, 2018.