Although not always advisable, the right to testify in trial is absolute. This brief article will focus on a few issues concerning the right to testify and my own thoughts why invoking the right may not be advisable.
The right to testify has multiple constitutional underpinnings. The United States Supreme Court has held “there is no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case.” ( Ferguson v. Georgia, supra, 365 U S. at p. 582 ) “A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness…” ( Rock v. Arkansas, supra, 483 U.S. at p. 52.) Thus, “[t]his right [to offer testimony] reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify.” ( Rock v. Arkansas, supra, 483 U.S at p 51.)
Preventing a defendant from testifying at his own trial deprives a defendant of these “basic protections,… [without which]… a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, [citation], and no criminal punishment may be regarded as fundamentally fair.” ( Rose v Clark (1986) 478 U.S. 570, 577-578 [106 S.Ct. 3101, 92 L.Ed.2d 460].) “No matter how daunting the task, the accused therefore has the right to face jurors and address them directly without regard to the probabilities of success. As with the right of self-representation, denial of the accused’s right to testify is not amenable to harmless-error analysis. The right ‘is either respected or denied; its deprivation cannot be harmless.’ ” ( State v. Dauzart, supra, 769 S.2d at pp. 1210-1211, citing McKaskle v Wiggins (1984) 465 U.S. 168, 177, fn. 8 [104 S.Ct. 944, 79 L.Ed.2d 122].).
Consequently, a defense attorneys failure to allow his client the right to testify is subject to automatic reversal or is governed under a Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] ( Chapman) standard of review. ( People v. Johnson (1998) 62 Cal.App.4th 608, 634-636 [applying Chapman]; People v. Hayes (1991) 229 Cal.App.3d 12261, 1234, fn. 11 [same]; People v. Harris (1987) 191 Cal.App.3d 819, 826 [applying automatic reversal])
In sum, although the right to testify is absolute, keep in mind it is not always advisable. Sometimes a Defendant has no choice but explain his conduct in the hope a jury will believe him. Often enough, a serial Defendant has criminal convictions that a jury would not know about unless the Defendant testifies, or doesn’t have proper court demeanor in the sense both vernacular and the art of persuasion through decent people skills will not be conveyed to the jury.
Given the above, a Defendant may not see the tactical advantage of embracing his attorneys choice and refuse to simply stay quiet, look humble, and unswayed by what the state has to offer in support of guilt. However, if the Defendant insists to invoking his right to ‘tell his side of the story’ the next person he may tell it to is his cell mate.
I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination.