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To Testify or Not to Testify? That Is the Question.

Over the past five weeks we have defended three different clients in three different jurisdictions, including St. Louis City, St. Louis County, and Minneapolis, Minnesota.  In every one of those cases, whether involving arson, murder, or sexual assault, our clients had to make the difficult decision to exercise their 5th Amendment right to remain silent or to testify on their own behalf.

There are excellent arguments to be made on both sides of the equation, and some may be surprising.  Nervousness, poor speaking skills, foreign accents, and imprecise memory of events may lead most defendants to shy away from testifying, but they may also be among the very reasons jurors find them more credible than the slick salesman-type with rehearsed answers to every question.

Although attorneys have an obligation to assist their clients in making this important decision, the decision itself belongs solely to the client.  The client’s level of comfort with and knowledge of the case will oftentimes make the decision easier.  To that end, the attorney should prepare the client for direct and cross-examination.  It may be during the preparation that the client decides, or it may be as late as when the government rests – either way, the more prepared the client is, the more intelligent his or her decision will be.

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