Testifying at a criminal trial?
A person accused of a crime has a right to testify in his or her defense. While criminal defense attorneys must advise a client as to the risk of this decision, it remains that of the client’s to make during any criminal prosecution. While the burden of proof is always on the prosecution (guilt beyond a reasonable doubt) it is sometimes helpful, and in some cases necessary, for the accused to testify during a criminal trial. I have written previous articles on areas to attack when a person testifies in court.
Testimony, however, is evidence. The concern with presenting evidence in court is always of “opening doors.” Opening a door is a term used often in criminal trials and it basically means creating an opportunity for the opposing side to present usually damaging evidence against the party who has introduced the evidence. In the case of an accused testifying in his or her defense, the most common concern is opening a door to prior criminal history or bad acts. It is important to understand, however, that the mere fact of that an accused testifies doesn’t mean that he or she has opened the door to character attacks.
While testimony alone doesn’t expose a person to character attacks the prosecution is permitted to impeach the accused person, or any witness under Rules 607, 608, and 609 of the Pennsylvania Rules of Evidence. While the prosecution isn’t permitted to present prior convictions under Rule 404(a) it can present prior convictions if those convictions will impeach the truthfulness of the accused person’s testimony. For example, if an accused person testifies that “I don’t sell drugs,” the prosecution is permitted to present prior convictions for possession with the intent to deliver (PWID). In a similar example, if the accused person were to testify that he is a non-violent person the prosecution could present evidence of prior convictions of violence (homicide, aggravated assault, etc.). The list of possibilities is endless (i.e. “I don’t drink” (prior DUI or disorderly conduct charges) or “I don’t touch guns” 9prior arrest for VUFA charges or convictions))
It’s important to understand that the rules governing impeachment are different than rules governing character evidence. Attacks on a witness’s credibility are most often done through prior convictions and the cross examining attorney isn’t permitted to normally ask about prior arrests which did not result in convictions. The basic principle behind this is that an arrest or an indictment does not establish guilt and is therefore prejudicial. In Pennsylvania, however, under Rule 608(b)(2), does permit a cross examining attorney to question a witness about prior behavior if this behavior demonstrates bias, motive, intent, identity, or is in some way probative to the issue in the case. If a witness’s testimony is attacked, however, the opposing party is permitted to rehabilitate the witness with favorable testimony.
Testifying in a criminal case sometimes comes with risk. The prosecution will bring out issues from a person’s past but it sometimes needs to be part of the strategy in a strong criminal defense. For more information on criminal defense strategy in Pennsylvania I encourage you to read my books, newsletters, and watch my videos.
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