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.