To Testify or Not to Testify? What Factors Defendants in Special Assault Cases Should Consider

If you are facing special assault charges, one of your concerns may be navigating the complexities of trial. You may be feeling anxious about what will happen at trial and especially about the possibility that you will testify.

These concerns are perfectly understandable. Your attorney should explain and help you navigate the choices available to you.

Should a Defendant Testify at Trial?

Every criminal defendant has the constitutional right to testify (or to refuse to testify) on his or her own behalf. At first, you may think, “why wouldn’t you speak up for yourself given the opportunity?” The choice is not always that simple, however.

Defendants who testify at trial can be questioned by the prosecutor. In addition to insinuating that a defendant’s testimony is false, these questions can reveal to the jury the defendant’s prior criminal history. The prosecutor is entitled to use this prior history to attack the defendant’s credibility as a witness, or in some instances, to point out that the crime at issue bears critical similarities to the defendant’s past convictions.

Unfortunately, remaining silent at trial to prevent the jury’s learning of a previous record has pitfalls as well. Jurors may unfairly penalize defendants who do not testify by inferring guilt from silence. Despite the fact that judges must instruct juries not to infer guilt from a defendant’s deciding not to testify, studies show that juries often do infer guilt anyway. Defendants who do not wish to risk the exposure of a criminal record face a challenging decision: testify and risk this exposure, or remain silent and risk the jury’s assumptions.

After considering the facts of your case, your attorney can help you decide whether to testify. Let’s look at how this often goes in the types of cases handled by the Marshall Defense Firm.

Rape Cases

If you have been charged with rape for a sexual encounter that was actually consensual, you will probably need to testify at trial. Because rape cases often arise out of intimate, private encounters, you will probably be the only person who can explain to the jury that the complainant consented to sex. Your testimony can show the jury that the encounter was not forced.

While cross-examining the complainant, your attorney may be able to point out parts of the complainant’s testimony that suggest consent. Your attorney may also introduce out-of-court statements the complainant made after the event (to a friend or family member, for instance) that suggest consent. But in most rape cases where consent is the defense, the defendant must testify.

If your defense is that sex did not occur at all, you may have very little idea why you’ve been accused. In this situation, you may not have much information that could not just as easily be presented in testimony by other witnesses. You can still choose to testify, however, if you and your attorney decide that testifying would be a good way for the jury to get to know you and to doubt that you would do something as wrong as the crime charged.

Child Sex Abuse Cases

In these cases, defendants are often individuals who had frequent access to the child during the time period the alleged abuse occurred. Here again, falsely-accused defendants may have very little idea as to why they’ve been accused. Because of this lack of concrete information, the testimony of a falsely-accused defendant at trial may not add much to explain the false accusation.

However, because children are (naturally) such sympathetic witnesses, jurors can’t help but care about them. A jury may not feel such automatic sympathy for you, but testifying may help the jury to get to know you and to feel some sympathy for you, too.

If you do have a good idea why you’ve been falsely accused (for instance, you had an interaction with the child which has been distorted), you will probably need to testify to explain the truth of the situation.

Unexplained Fractures and Infant Brain Injury Cases

These cases usually rely on medical testimony to establish a case against the defendant, alleging that the presence of certain injuries to the child could not have occurred without violence. To counteract this testimony, the defendant will need to find his or her own medical experts to explain the child’s injuries in ways that do not involve mistreatment.

Given the highly technical nature of this evidence, the defendant may not personally have much to add to this discussion. However, if you are facing charges for injuries to a child you did not cause, you may wish to testify anyway in certain circumstances. If medical or police reports of your statements are misleading, testifying gives you an opportunity to effectively explain anything that seems inconsistent in your prior statements, removing the appearance of self-incrimination.

Domestic Violence Cases

A defendant in a domestic violence case should consider testifying in a couple of scenarios. If you made statements to the responding police officer that the prosecutor could paint as an admission, it is important to your chances of acquittal that you testify to the police’s misunderstanding of your statements.

If your defense to domestic violence charges is that you were acting in self-defense, which you perceived to be necessary to defend yourself against death or very serious injury, you should almost certainly testify to explain your perception. Because incidents that give rise to domestic violence charges often happen in private, away from the view of other witnesses, your testimony may be essential to establish that the complainant was the first aggressor.

Final Thoughts

The Marshall Defense Firm has years of experience helping clients navigate the complexities of trial, including the important choice of whether to testify or not. Our seasoned attorneys are able to counsel clients in every situation to make the best decision for their individual circumstances. If you are facing special-assault charges and need help, please contact us at 206.826.1400 or

Confer with us in good health! You may choose to confer with us by Zoom or telephone to avoid Covid risk. Please phone us at 206.826.1400 to schedule your conference.