Prove it or else I do not need to testify
Posted By Herman Martinez on Jul 21, 2010 12:28pm PDT
One of the most difficult legal concepts for anyone outside the criminal justice system is our right not to testify in a criminal case. Most people know this right as pleading the "5th." As a criminal defense lawyer I have a lot of potential jurors tell me during voir dire (when a jury is picked) that they would have to hear from the defendant before finding him/her not guilty of the alleged crime. I can understand their position since we have been taught from our childhood to defend ourselves when accused of something we are accused of doing. Nevertheless, any juror that has this position would be disqualified from sitting in a criminal case. This does not make them a bad person or a bad juror. In fact, they would be qualified to serve as a juror in an non criminal case where a defendant is not afforded the fifth amendment privilege.
If one thinks this through it is clear why a defendant in a criminal case should not have to testify against themselves. The burden of proof is on the State that is bringing the charges against the person. If the State fails to prove to a jury that the person is guilty beyond a reasonable doubt the defendant does not have to do anything because the jury's verdict should be not guilty. Thus, the defendant's testimony is immaterial if after closing their case the State did not meet their burden.
An example of this is the trial of former Illinois Governor, Rob Blagojevich. After campaigning for several months that he would be testifying on his own behalf he decided not to testify after the prosecutors finished their case. This is his right and hopefully the jury does not hold that against him.