H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Criminal Law – Should I Testify At My Trial? The Research Will Surprise You

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Colorado Criminal Law - Should I Testify At My Trial - The Research Will Surprise YouColorado Criminal Law – Should I Testify At My Trial? The Research Will Surprise You – One of the most difficult decisions in any Colorado criminal trial is the decision whether to testify or not to testify on your own behalf.

This decision to testify or not to testify is uniquely the Defendant’s – not the lawyer’s, the judge’s or the prosecutor’s. Understanding the way juries think about a Defendant’s decision to NOT testify at trial is critical. A Defendant must have all of the variables necessary to make an informed decision as to whether the risk of testifying is worth it.

The Assumption That Jurors Follow The Law – A “Reality Check” In Colorado Criminal Trials

In Colorado criminal jury trials, it is assumed that jurors will always follow the law. In this context “the law” is based on two critical legal rules:

I. Jurors may not draw an adverse inference against the Defendant from that Defendant’s refusal to testify;

II. If a Defendant decides to testify and is “impeached” (cross examined) with prior convictions, the jury cannot consider that evidence as showing a “criminal propensity” to commit the crime charged in the case.

Here are the relevant Colorado jury instructions:

I. Every defendant has a constitutional right not to testify. The decision not to testify cannot be used as an inference of guilt and cannot prejudice the defendant. It is not evidence, does not prove anything, and must not be considered for any purpose.

II. The defendant is to be tried for the crime charged in this case, and no other. You may consider testimony of a previous conviction only in determining the credibility of the defendant as a witness, and for no other purpose. When the defendant testifies, his / her credibility is to be determined in the same manner as any other witness.

To understand the reality of the impact of the decision NOT to testify is best driven home by a juror from the well known “Serial” podcast. Here is the exchange with the juror;

Reporter: Did it bother you guys as a jury that [the defendant] didn’t testify, didn’t take the stand?¨

Juror: Yeah, that was huge. We all kinda like gasped, we were all just blown away by that.

You know, why not, if you’re a defendant, why would you not get up there and defend yourself, and try to prove that the State is wrong, that you weren’t there, that you’re not guilty?

We were trying to be so open minded, it was just like, get up there and say something, try to persuade, even though it’s not your job to persuade us.

Thr Right To Take The “Fifth” – And The “Silence Penalty”

A Defendant who refuses to testify is attempting to prevent the District Attorney from what can often be a fierce cross examination or the right to introduce a Defendants prior (admissible) criminal convictions.

The common belief on the part of most criminal defense lawyers is to recommend to their clients NOT to testify – because of those dangers.

What the research is now demonstrating is this – “silence comes at a price” and juries actually do NOT follow the law and will penalize Defendants who fail to testify. They WILL infer guilt from silence.

This research demonstrates unequivocally that the “silence penalty” is so substantial that it rivals the damage done to a Defendant fierce cross examination and by the potential introduction of a Defendant’s criminal record.

The Decision – Testify Or Not testify – How It Works And Damage Control

While plea bargains result in more than ninety percent of all criminal convictions, a large number of cases go to trial every day all across Colorado. At trial a Defendant has only two trial options, testify or remain silent.

For most defendants the choice between testifying or remaining silent is an exercise in damage control.

The Defendant With Admissible Prior Convictions That Can Used Against Him At Trial Is At Risk

There is no question that social science has established that Jurors are more likely to convict an accused if they receive information about previous convictions than if they do not.¨

Well established research has demonstrated that “prior conviction impeachment” means jurors will unfairly use prior convictions not as evidence of the Defendant’s character for truthfulness – but to prove that the convictions prove a criminal propensity to commit crimes.

Silence May Not Be The Answer

The advice of most criminal defense lawyers has always been that their client may be better off saying nothing but the empirical evidence now demonstrates that remaining silent comes at a price. For years public opinion surveys have concluded that half of the respondents believe that a Defendant who does not testify is “probably guilty¨ or has “something to hide.”

The latest social science literature, (by Professor David R. Shaffer) now supports the conclusion that jurors punish defendants for refusing to testify. The research reveals that mock jurors will more likely convict when they believe that Defendants appear to be “withholding information.”

The Experiment

In a sophisticated trial simulation – mock where jurors were presented with three scenarios:

1. A Defendant who did not testify;

2. A Defendant who testified, but refused to answer a potentially incriminating question during cross-examination; or

3. A Defendant who testified normally without refusing to answer any questions.

The Results

The relvent results of the mock trial were:

1. Jurors will convict more readily when they learn that a defendant has a prior criminal record; and

2. Jurors will penalize defendants who do not testify.

Researchers called this the “parallel penalty¨ hypothesis. The result – 76% of the defendants who remained silent were convicted – as compared to only 62% of equally situated defendants who testified.

The Conclusion – Defendants Probably Should Testify More Often

The conclusion of the studies briefly mentioned is that juries punish defendants for remaining silent at trial with a “silence penalty¨ and that the “silence penalty” is roughly as damaging as the prior offender penalty.

The meaning of the silence penalty is this -if you are a Defendant without a prior record who take their cases to trial but then decline to take the witness stand may be making a huge mistake.

Testifying under these circumstances avoids both the silence penalty and the prior offender penalty. But declining to testify means the jury will “punish” them as if they would a Defendant with prior convictions.

The common wisdom of “reflexively” accepting the widely-accepted tactic of refusing to testify may actually expose a Defendant to the more damaging silence penalty.

Colorado criminal Defendants sometimes have a difficult choice if they have a prior criminal history which can be used against them at trial given the severity of that record.

Their options are:

(1) avoid by forgoing trial and pleading guilty (plea bargain) thus “incentivizing” the guilty pleas because of the fear of a guilty verdict; or

(2) go to trial and exercise the right to testify risking the penalty of a damaging cross examination that could quickly take the trial in the wrong direction.

These have always been the well known and well understood risks. But what about the Defendant who does NOT have a criminal history that can be used against them should they decide to testify at trial?

Modern research has added a third consideration. The “silence penalty.” For Defendant’s who do NOT have a criminal history, the decision to remain silent at trial may result in the jury ignoring the law and imposing a hidden bias and punishment on unsuspecting Defendants who refuse to testify at their Colorado criminal trials.

Colorado Criminal Law – Should I Testify At My Trial? The Research Will Surprise You