ico gavel 200This column focuses on demystifying legal defense issues so members better understand what they may face if they defend themselves or their families. This month, we discuss the legal defense of self defense.

Traditionally, criminal defense attorneys suggest clients should not testify in court, hoping instead that the presumption of innocence and holes in the State’s case will lead to acquittal. When an armed citizen uses force in self defense, he or she has committed elements of a violent crime, and justification for those actions needs to be explained to a jury’s satisfaction.

When representing a client who has used force to defend themselves, what has been your experience if the defendant testifies or does not testify at trial?

Our affiliated attorneys had this to say:

John R. Monroe
John Monroe Law, PC
156 Robert Jones Rd., Dawsonville, GA 30534

If the only or main theory of defense is self defense, somebody has to testify to the facts constituting self defense. In an ideal world, there is a third party witness neutral or friendly to the defense who can do so. But frequently that is not available. If not, it is all but impossible to get a jury to acquit if the defendant doesn’t take the stand.

Manasseh Lapin, Esquire
Lapin Law Group, P.C.
539 West Commerce St., Ste. 1950, Dallas, TX 75208

When analyzing the issue of whether a defendant in a self-defense criminal case should testify, two major concerns should be considered. The first concern deals solely with the factual and legal issues presented by the case, without regard to issues relating to the particular defendant; the second concern relates to issues involving the particular defendant.

The analysis that follows assumes a hypothetical case in which the evidence is likely to show that a criminal defendant acted lawfully, in self defense, and that the defense team reasonably believes the defendant should (if everything goes well at trial) be found not guilty.

I. Legal Issues
Conventional criminal defense “wisdom” is for attorneys to counsel their clients to not testify at trial. The primary reason for this is because the U.S. Constitution protects the right of criminal defendants to not be compelled to be a witness against themselves, which has been held to include a prohibition against prosecutors bringing to the jury’s attention that the defendant exercised his right to not testify at trial. This strategy forces prosecutors to “prove their cases” in order to obtain criminal convictions.

Criminal defendants in self-defense cases have exactly the same constitutional rights – including the right against self-incrimination – as do defendants in non-self-defense cases.

The substantive plea that a defendant enters at the outset of every criminal case is always the same: “Guilty” or “Not Guilty.”

A plea of “Not Guilty” can mean many different things, most of which do not apply to self-defense cases. A “Not Guilty” plea can mean the defendant is claiming: (i) factual innocence (e.g., “I didn’t do it”); (ii) insufficient evidence exists to support a conviction (e.g., “you [the government] can’t prove – through admissible evidence – that I committed a crime”); (iii) the statute under which the defendant is being prosecuted is unconstitutional; (iv) prosecution is barred by the statue of limitations, or (v) there is legal justification for commission of the charged acts (e.g., “I committed the acts which constitute the offense, but some other fact(s) negates criminal liability (e.g., I acted in self-defense)”). This type of defense is what’s known as an “affirmative” defense, “affirmative” because the defendant admits committing the acts, but alleges having been legally justified in doing so.
To obtain a conviction, the government – in every criminal prosecution – bears both the burden to prove the defendant’s guilt beyond a reasonable doubt and the burden to present evidence.

In every criminal case, the government is the first party to present evidence. For example, in a hypothetical murder case, the government would likely present evidence that the defendant was armed and that the defendant shot and killed the decedent (e.g., “victim”). The defense, during cross-examination of government witnesses (both lay witnesses and expert witnesses), might challenge the government’s evidence by, for example, trying to show that witnesses for the prosecution are not credible or that the physical evidence offered by the prosecution isn’t reliable or simply doesn’t prove what the prosecution would like it to prove, thus creating reasonable doubt as to the defendant’s guilt.

After the government has finished presenting its case, the defendant is given an opportunity to present his defense. In non-self-defense cases, such evidence might include calling defense witnesses (both lay witnesses and expert witnesses) whose testimony (further) brings into question the reliability of, or directly contradicts, the evidence that was offered by the prosecution. Just as the defense had an opportunity to cross-examine the prosecution’s witnesses, so too, the prosecution is given an opportunity to cross-examine defense witnesses.

Up to this point, trial procedure for non-self-defense and self-defense cases is identical.

But now, procedurally, things change. The defendant in our hypothetical murder case, by alleging the affirmative defense of self defense has, by definition, admitted that he used a firearm to shoot and kill the decedent (e.g., “victim”).

Because the self-defense defendant, as compared to the government, has superior access to evidence relating to self defense (e.g., defendant’s potential testimony), the burden to produce evidence on the issue of self defense – but not the burden to prove innocence – shifts from the government to the defense.

The government, in the presentation of its case, might very well have (inadvertently) offered evidence that the defendant acted in self defense. However, in the abstract, it is much more probable that the defendant will be better situated to offer evidence of self defense. The best form of such evidence is often the defendant’s testimony.

After the defendant produces evidence of self defense, the burden to produce evidence then shifts back to the government, requiring the government to negate, if it can, any reasonable doubt as to whether the defendant acted in self defense.

What constitutes appropriate or sufficient evidence of self defense will be determined by the law of the jurisdiction (e.g., state) in which the defendant is being tried.
Thus, we see that, unlike in non-self-defense cases, where the default position is that defendants do not testify, the default position in self defense cases is that such defendants do testify.

II. Issues Relating to the Defendant

A. Testimonial Skills:
One of the major considerations in deciding whether a self-defense defendant should testify is whether the defendant is capable of giving persuasive testimony.

Giving persuasive testimony is a skill, like many other skills. It requires, of course, the ability to give truthful testimony; however, not all truthful testimony is persuasive.

The ability to give persuasive testimony does not mean a person must be highly educated. Police officers, many of whom have little or no college education, often give highly persuasive testimony. Almost all police officers have received at least some training to develop their skills as a witness.

Some highly educated, knowledgeable, and degreed individuals, on the other hand, lack the skills needed to give persuasive testimony. This, however, does not describe the expert witnesses whom the government can be expected to call in support of their case. Such witnesses are almost always quite skilled in giving persuasive testimony.

A self-defense defendant’s defense team will likely try to prepare the defendant to testify. Such preparation is intended to prepare the defendant to give truthful, persuasive testimony. It is not intended, as the saying goes, to prepare the defendant to “Test-A-Lie” (as opposed to “testify”).

Some people possess a greater innate ability to provide persuasive testimony, as compared to others. Nevertheless, the ability to develop a degree of skill which enables one to give persuasive testimony is easily within the capability of most people.

B. Bad and/or Collateral Facts:
Another consideration relates to the issue of “bad” or “collateral” facts and whether, as mentioned above, the self-defense defendant can give truthful, persuasive testimony which is reasonably likely to mitigate or overcome these facts.

Such “bad” or “collateral” facts might include:
1. Modifications to the firearm that was used in the self-defense incident;
2. Evidence that the defendant has what might reasonably be perceived as an anger management problem;
3. Controversial pre-incident statements made by the defendant (e.g., social media posts, etc.);
4. Controversial slogans on the defendant’s clothing, bumper stickers, etc.

The government can be expected to attempt to exploit anything it can in its attempt to paint a self-defense defendant as some type of gun nut, reckless person who was looking for an excuse to shoot someone, or the like. A prudent person who carries a firearm for self defense will, through their everyday conduct, consciously refrain from supplying the government with this type of inflammatory, albeit questionably relevant, evidence.

The general “rule” is that most (non-self-defense) criminal defendants should probably not testify at trial. In self-defense cases, on the other hand, the general “rule” is that most defendants probably should testify at trial, as such defendants are likely the only source of certain evidentiary facts.

Nevertheless, general rules are just that. Both the facts and people involved in each case are different from every other such case. Accordingly, whether a defendant should testify in any particular criminal case is a decision that must be made on a case-by-case basis.

Steven F. Fairlie, Esq.
Fairlie & Lippy, P.C.
1501 Lower State Road, Ste 304, North Wales, PA 19454

There is no uniform answer for whether a defendant should testify in a self-defense case or not. In Pennsylvania, the law permits proof of self defense by other evidence, and does not require the defendant to testify.

Generally, we examine whether our case is more compelling with the defendant’s testimony, or without, and then make a decision. There are lots of wild cards. For instance, in one case, a judge ruled that he would not instruct the jury on self defense unless our client testified and the client then chose to testify against my advice. It would have been better if he didn’t testify, although that may have involved waiting out an appeal while incarcerated.

Adam C. Russell
Criminal Defense Lawyer
309 Washington St., Brighton, MA 02135

Testifying in your own defense can help jurors feel you were facing deadly force.

Laura A. Fine
Law Office of Laura A. Fine, P.C.
PO Box 1240, Veneta, OR 97487
This email address is being protected from spambots. You need JavaScript enabled to view it.

The decision of whether clients testify on their own behalf is ultimately the client’s decision. This decision should be made in concert with the client’s attorneys. Each case is unique.

There may be a case where it is better for a client to avoid testifying. However, self defense is an affirmative defense. This means that the defendant has the burden to prove the need to use self defense. The proof is based on the objective and subjective perceptions of the threat. The client’s knowledge of the complainant’s reputation for violence or prior instances of violence or aggression is a critical fact to present at trial. This is usually best presented by the actual client.

Steve Wells
Attorney at Law
431 W. 7th Ave. Ste. 107, Anchorage, AK 99501
This email address is being protected from spambots. You need JavaScript enabled to view it.

I am generally of the opinion that the client should testify. The jury wants to hear from the person – what they saw, what they thought, what they were feeling. I lean toward putting clients on the stand but there are the cases in which I would absolutely put a client on the stand absent extremely unusual circumstances: self defense and consent in a sexual assault case. This really applies when there are no defense witnesses other than your client.

Having said that, it is imperative to prepare your client and it is imperative that your client follow your instructions. If a client cannot adequately follow your instructions on how to testify, they can devastate your case. You’d be better off with keeping a client off the stand than putting on one who won’t follow your advice.

I had a case like that. My client stabbed a drunk guy coming at him while my client was standing outside a bar smoking a cigar. If the client had followed the advice of me and my investigator, he would have been fine. But instead, he started going off while on the witness stand, embellishing and making himself the hero. We were telling him he would win if he could show that his actions were more instinctive, that he shoved the guy while still holding the pocket knife he had just used to cut his cigar. And that fit the evidence. But our client started this long narrative trying to make himself Bruce Lee. Our client’s long narrative, despite many, many meetings and attempts to prepare him, established that he had effectively disabled the drunk guy coming at him before client stabbed him. We had practiced the testimony many, many times and he had been fine. On the stand, though, he went completely off script and my not-so-subtle reminders did not help him. It’s to the point that my investigator and I now use that client’s last name as code for “a client who hoses himself with his testimony,” as in, “that client really [Smith]’d himself,” or “prep that client so he doesn’t [Smith] himself.”

In other cases, though, clients have followed my advice, listened to questions and answered the questions presented. In so doing, they came across very well and I got two acquittals and one very public hung jury with no re-trial for clients using deadly force in self defense (one homicide, two first degree assaults and/or attempted homicide charges).

So generally, put your client on the stand, but ONLY after extensive preparation in which your client demonstrates that client can be a good witness. Feel free to use this story as an example of a client whose failure to follow legal advice got him years in prison he could have avoided if he’d paid attention.


Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we share the second half of our affiliated attorneys’ responses this question.

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