5

As I understand it, under US criminal law, a defendant may decline to testify in their own trial.

Suppose a defendant elects to testify in their own trial but decides that it is no longer in their best interest to continue. Can they leave the witness box at a whim. For example mid-question by either defence or prosecution. Could they perhaps say to the judge, "I no longer wish to testify, may I step down?" and the judge allow this?

Conversely, if the trial is going badly and, at the last moment, they decide that they do want to testify in order to bolster their position, can they request this and it be granted, even at the last minute?

Are there any precedents for these actions by a defendant?

13

Normally, the prosecution case will not rely upon the testimony of the defendant. Instead, the prosecution will call all of its witnesses until its evidentiary case is complete.

Then, the defense case opens and it may call witnesses. The defense is not obligated to call all of the witnesses that it stated that it anticipated that it would call prior to trial and the jury doesn't know which witnesses the parties said that they anticipated that they were going to call and didn't call.

Until the defense case is closed, the defendant can call himself or herself as a witness if he or she wishes to do so, but is not obligated to do so.

Once a defendant starts testifying (generally in his or her own case) he or she has generally waived the Fifth Amendment right not to testify. So, the prosecution may cross-examine the defendant in this situation. But since the prosecution's case is usually already closed at this point, the prosecution's cross-examination is limited to the scope of the defendant's testimony under questions from his or her own lawyer (there are some nuances of how this is done when the defendant is self-represented and has no lawyer). The prosecution cannot expand the scope of questioning of the defendant to new topic areas.

I can imagine deviations from this pattern in odd circumstances, but they would be very rare.

4
  • Can the defendant just refuse to answer or say "I don't recall." during a cross examination? Or would that be contempt of court or something like that? – Minix Feb 24 at 14:25
  • Refusing to answer can be considered contempt. – Studoku Feb 24 at 16:10
  • 1
    @Minix Stating that "I don't recall" is acceptable, if sincere, but in the context of cross-examination, the defendant has already testified about something in that time period so it is unconvincing at best. In addition to threats of contempt, non-responsive answers in cross-examination destroy one's credibility with the jury and that at best makes testifying in the first place useless and at worst leads to a conviction when the jury was otherwise feeling that there was reasonable doubt. – ohwilleke Feb 24 at 17:04
  • The prosecution cannot rely on the testimony of the defendant, unless the defendant's attorney is terminally incompetent. If the prosecution attempts to do so, the defense should move for a dismissal when the prosecution rests. Since the defendant can only be called by the defense, by that point they won't have been called yet and their testimony won't be in evidence. As a matter of law, if the prosecution's case depends on evidence not yet given at that point in the trial, it is deficient and should be dismissed. – Kevin Feb 24 at 18:57
3

Once an accused, or any other witness, has started to testify, the other side has a right to cross-examination, and the witness may not leave without responding to any cross-examination that the pother attorney may choose to make (subject to objections and rulings by the judge, of course). The accused, unlike other witnesses, could tell his or her lawyer to stop the main examination at any point, but might well be very unwise to override the lawyer on such a point.

The Judge controls the details of procedure, but normally each side may present their witnesses in any other that they please, although the prosecution may need to establish the fact of the crime before going on to other matters. The defense may change tactics in mid-trial, although it may not be able to add witnesses that it did not mention to the other side at a specified point in the pre-trial process. But it can notify the prosecution of witnesses that it may or may not choose to call.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.