Cross Examination: What you need to know before you testify

Cross Examination: What you need to know before you decide to testify


If you are charged with a crime and you decide to exercise your right to a trial, either by jury or by the court, you will have to decide if you want to testify on your own behalf or not.  This is your choice.  Your lawyer cannot stop you from testifying, and on the other hand, no one can force you to testify.


There are some misconceptions to testifying.  I will attempt to clarify some. If you are thinking of testifying, you need to have serious, long conversations with your attorney so that you will be prepared.


Fifth Amendment:  If you are on the stand as the Defendant, you may think that you can refuse to answer questions based on your Fifth Amendment right not to incriminate youself.  This is true, but by exercising your Fifth Amendment privilege, you are essentially admitting that by answering truthfully you will be incriminating yourself.  That is not something the jury is going to ignore.  The judge will have to do an analysis to determine if you can assert your Fifth Amendment privilege, and you will only get to do so if you will indeed be potentially incriminating yourself.  Simply trying to assert the Fifth Amendment privilege may be a red flag to juries that you are being deceptive, have something to hide, and were involved in criminal activity.


Cross Examination:  The prosecution will get to cross examine you.  This is a question and answer form – it is not a running narrative.  You will only be able to answer the questions asked by the prosecution and you will not get to elaborate or explain until its your attorney’s turn to ask you questions again.  Cross examination is not going to be a pleasant experience.  The state’s attorney is going to try to make you look like a liar and like you are guilty.  The prosecution is going to ask you questions designed to make you give inconsistent statements.  The prosecution is going to ask questions that make your version of the events look incredulous.  Its not just a “Here’s what happened.  Let me explain” type of thing. 


Past criminal history:  Some or all of your criminal history may be fair game on which the prosecution can cross examine you.  You will have to admit, if asked, if you’ve been convicted of certain crimes in the past 10 years.  This is regardless of whether or not this is the same type of crime or whether or not you’ve “paid your dues”.  This is to make you look like someone who is prone to dishonesty and criminal behavior. 


Perjury:  Your attorney cannot help you commit perjury.  S/he is strictly, explicitly barred from suborning perjury and cannot put you on the stand if s/he knows you are going to lie.  If you start lying whileyou're on the stand, your attorney is going to have to let you say your piece in many instances but cannot ask you any questions to help communicate your story to the jury.  It is not a good idea to perjure yourself – you may be opening yourself up to further, serious criminal charges. 


Ultimately, the jury may well pick up on subtle signs of deception if you are not telling the truth.  Evasiveness, defensiveness, subtle body language – the jury may use all that to come to the conclusion that you are lying.  It may in some instances be very important for you to testify – you may have to if you are the only one in possession of the testimony that you need to get in, for example an alibi or a self defense affirmative defense.  It may in some instances be very dangerous for you to testify – especially if you are not going to be completely honest.  Please talk to your lawyer and listen to him or her and discuss the ultimate goal you hope to accomplish with your testimony.