Former Prosecutors Defending Clients in Wyoming and South Dakota
If you were charged with Driving While Under the Influence (DWUI) in Wyoming or South Dakota, you may be eager to take the witness stand, tell your side of the story, and proclaim your innocence.
Or you may be nervous when thinking about testifying at trial and wonder whether it makes sense for a defendant to testify in a DWUI case.
Testifying if your own defense is actually more complicated than just overcoming your fears and telling the jury your side of the story. There are issues of trial strategy and your Constitutional rights at play. In all but a few cases, I recommend that my clients do NOT testify in their own defense in a DWUI case.
If you have been charged with a DWUI, you have the right to testify in your own defense.
But you are not required to testify in a criminal trial.
In fact, under the Fifth Amendment of the Constitution, you have the right NOT to testify in a criminal trial, and your decision not to testify cannot be held against you.
In all but a few circumstances, I recommend that my clients do not testify at their own trial. Instead, I recommend that you assert your right to remain silent and let your attorney present your case for you.
As you will see, allowing a criminal defendant to testify brings too much uncertainty into a trial, and too many things can go wrong. If you do decide to testify, there is almost no limit on what the prosecutor can ask you. The prosecutor’s questions can make the trial about something other than whether or not you were driving while under the influence and make it less likely that the jury will return a favorable verdict.
A DWUI is a criminal charge, which means that a defendant is afforded all the protections offered by the U.S. Constitution. Under the Fifth Amendment, a criminal defendant has the right to remain silent. The prosecution and the judge cannot comment on the defendant’s decision not to testify. The defendant’s decision not to testify cannot be used against them. Neither the judge nor the prosecutor can challenge or overrule that decision.
Instead, the judge must instruct the jury that they cannot use your decision not to testify as evidence of guilt or innocence, and that the prosecutor bears the burden of proving you guilty beyond a reasonable doubt.
It is almost never a good idea for a defendant to testify in a DWUI trial. The risk of having negative evidence come out on cross-examination far outweighs the potential benefits of hearing directly from the defendant. This is especially true in a DWUI case, where the defendant’s testimony adds little to the outcome of the case.
A criminal trial is a stressful event for anyone, and even more so for the defendant, who has much to lose. Most people do not perform well under the stress of a trial. The risk of becoming agitated, irritable, or nervous, especially during cross-examination, is just too great. That’s why I advise my clients not to testify on their own behalf in a DWUI trial.
A criminal defendant may present credible, reliable, and effective testimony during direct examination by his lawyer. But it is unlikely that his testimony will be as effective during cross-examination by an experienced prosecutor, who is trained to draw out information and use it to make a defendant look guilty.
During cross-examination, it is just too easy for a defendant to become confused, or incorrectly answer a question they did not fully understand. These minor mistakes can then be used to discredit the defendant and paint him as a liar who is just trying to avoid the consequences of a DWUI conviction.
During the prosecutor’s summation, he will point out inconsistencies and mistakes made during the defendant’s testimony. He will then argue that the defendant’s testimony was self-serving, and that the defendant just wants to avoid the consequences of a DWUI conviction.
In addition, during cross-examination, a prosecutor has wide latitude to ask questions about almost anything in the defendant’s background. A defendant’s past criminal record, no matter how minor, is fair game. In the hands of an experienced prosecutor, a minor criminal offense can be used to show that a defendant is a habitual offender.
Finally, there is just no way to “win” cross-examination. The only thing you can do is withstand it. The prosecutor’s goal is to get the defendant to say things he does not want to say and use that testimony to prove that you are guilty.
Instead of testifying in your own defense, it is better to rely on the presumption of innocence and to let your attorney challenge the reasons you were stopped, the science behind Blood Alcohol Content (BAC) testing, the effectiveness of a Breathalyzer test, how alcohol is processed in the body, and your performance on Field Sobriety Tests (FSTs).
If you have been charged with a DWUI in Wyoming or South Dakota, you need an experienced criminal defense team on your side who will fight to protect your rights and challenge the evidence against you.
At Just Criminal Law, we work hard to help you understand the charges against you and challenge the evidence the prosecutor will present. Our team will fight to have the case against you dismissed, negotiate a favorable plea deal, or defend you at trial.
Learn more about our founding attorney Christina L. Williams and her criminal defense team, read why clients choose us for DWUI defense, then contact Just Criminal Law today to schedule your personalized case review and strategy session.
DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.