Last Updated: 04.08.2020

Remain silent and why a defendant might testify

As a Maryland lawyer, let me first preface this post by saying that trial and trial tactics are more art than science.  With all art, it is subjective to the artist and to the viewer.  The important thing with the art of trial, is making a good, informed decision and learning to roll with the punches at whatever the State may throw at you.

Remain Silent: Why you should or should not testify as a defendant in your criminal case

Your right to remain silent as a criminal defendant is deeply rooted in our constitution and the jurisprudence that founded our nation.

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If this guy talks, anyone will...

This should not be confused with Miranda Rights, which is a right derived from the same section of the bill of rights but is a pre-trial but post arrest right.  Rather, the right to remain silent as a criminal defendant at your trial means you can remain silent and you are not to have that silence held against you by the judge or jury.  This right is rooted in medieval times when people were regularly compelled to testify against themselves (usually through torture and other not very nice methods). For a greater treatment on the subject see here and here.

Practical considerations of remaining silent

History aside, if you find yourself charged with a Maryland crime, one of the discussions you should be having with your Maryland lawyer is, “do I testify or not?”  This isn’t probably a discussion you have until all the evidence is reviewed but certainly it is a practical consideration that your lawyer should contemplate early on in the process, from your first meeting.

How Remaining Silent Works

At a bench trial, your judge is a Maryland lawyer and is well versed in the concept of your right to remain silent during your trial.  Similarly, the judge “instructs the jury on the law” and if you have a jury trial, the judge will inform the jury that your silence should not be held against you.  After the State’s Attorney puts their case on, you put on your witnesses then you get a chance to have the last say.

Maryland crime: Why you should testify

  • You are a witness to the crime, and you have a story to tell about your side of what happened
  • Remaining silent might unintentionally be held against you – regardless of the law, Judges and Juries are human and want to hear your story
  • You might be the ONLY witness who can tell your side of the story
  • You might be a great witness

Maryland crime: Why you should NOT testify

  • There is another way to effectively communicate your story of what happened to the judge or jury (other witnesses, documentation, cross exam of state’s witnesses, etc)?
  • The State’s case is so bad that you don’t need to speak (the burden is on the State to prove the case beyond a reasonable doubt)?
  • Your story, frankly, is not credible (also known as B.S.)
  • Your story, while credible, may not hold up under questioning by the State’s Attorney – prosecutors have spent years in training to become attorneys and in some cases more time learning the art of cross-examining witnesses.  Don’t be fooled – if your story has a weakness it could be exposed
  • You have a prior conviction that is likely to come out to the judge/jury (known in legal parlance as an impeachable crime).  Not every crime is admissible, so be sure to have a good Maryland lawyer

As stated at the beginning of the article, every Maryland lawyer knows this is more art than science.  These factors listed above aren’t even the only things to consider but are a good start.  Most important of all is hiring a Maryland lawyer who will fight for you and your cause, regardless of whether you decide to testify or remain silent.