Figuring Out Client Testimony in Criminal Cases

When a client is facing criminal charges, one of the most critical decisions they will make is whether to testify in their own defense. As an attorney, it is your responsibility to guide your client through this decision-making process and ensure they understand the potential risks and benefits of taking the stand in a criminal case.

The Constitutional Right to Testify

It is essential to understand that a criminal defendant has a constitutional right to testify on their own behalf. This right is derived from several provisions of the U.S. Constitution, including the 14th Amendment’s guarantee of due process, the Sixth Amendment’s right to a fair trial, and the Fifth Amendment’s protection against self-incrimination. Ultimately, the decision to testify belongs to the client, not the attorney.

The Attorney’s Role in Advising the Client

While the client has the final say in whether to testify, the attorney plays a crucial role in ensuring that the client makes an informed decision. This involves having a focused discussion with the client about the pros and cons of testifying, as well as the potential consequences of doing so. The attorney must ensure that the client’s waiver of their right to testify is knowing, voluntary, and intelligent.

Potential Perjury

One of the most challenging situations an attorney may face is when they believe their client intends to commit perjury on the stand. While a defendant has the right to testify, they do not have the right to present false testimony. Attorneys have an ethical duty of candor to the court and cannot knowingly assist a client in presenting false evidence.

If an attorney becomes aware that their client plans to commit perjury, they must advise the client against doing so and explain the potential consequences, including criminal charges for perjury. If the client persists in their intention to testify falsely, the attorney may need to take further steps, such as seeking to withdraw from the case or limiting their questioning to areas where they believe the client will testify truthfully.

In the event that the client has already provided false testimony, the attorney is faced with a difficult decision. They must balance their duty of loyalty to the client with their ethical obligation to the court. While the specific course of action may depend on local rules and case law, attorneys should be prepared to take remedial measures, such as informing the court of the client’s untrue statements, if necessary.

Differences Between Civil and Criminal Cases

It is worth noting that the implications of a client’s decision not to testify can differ between civil and criminal cases. In a criminal case, a client’s choice to remain silent cannot be used against them. However, in a civil case, the opposing party may be entitled to an adverse inference if the client invokes their right to remain silent. This could potentially lead to the client losing the lawsuit, making it crucial for the attorney to thoroughly discuss the consequences of not testifying with their client in a civil matter.

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Please note: The information provided on this website and within our blog posts is intended solely for educational and informational purposes as a public service by the Georgia Civil Justice Foundation.

Legal issues can be complex and individualized. If you are seeking legal advice, please contact a licensed attorney in your jurisdiction who can provide legal guidance that suits your particular situation.

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