Former federal prosecutor John Helms, now a Dallas criminal lawyer, outlines the challenges and methods he uses to prepare his clients to testify at trial.
I have prepared literally hundreds of witnesses to testify in civil depositions and trials and in criminal cases for both the prosecution and, as a Dallas criminal lawyer, for the defense. I have also cross-examined a lot of criminal defendants in trial as a prosecutor. From these experiences, I know that preparing a criminal defendant to testify at trial involves some unique challenges. They can be overcome, though, by applying critical thinking and proven methods to the task.
The first challenge is deciding whether or not to call the defendant as a witness in the first place. The law says that a criminal defendant has an absolute right NOT to testify, and prosecutors are not allowed to comment in any way on a defendant’s failure to testify.
In many cases, though, especially if the defendant is accused of something outrageous like domestic violence or sexually assaulting a child, jurors expect a defendant to get on the witness stand and deny the charge even though the law says they have an absolute right not to. They think, “If I were falsely accused of that, I would want to get up there and deny it.” Therefore, if a defendant does not testify, they tend to think it is because he or she is guilty.
As a criminal defense lawyer, I do my best to set up the evidence so that I can win the case without having to call the defendant. That way, calling my client as a witness is an option instead of a necessity.
The second major challenge is helping my client understand how to testify persuasively. Many people accused of crimes have no experience testifying and are not naturally good communicators. They have to be taught that, even though a prosecutor and I are asking them questions, the real audience is the jury. They have to understand how to look calm, confident, and like they have nothing to hide. They have to understand that they will testify, if at all, only after the government has called all of its witnesses who have tried to make the defendant look guilty. This means that the jury may be very skeptical of them, or even angry with them, before they even open their mouth.
I like to practice my client’s testimony on videotape so that we can play it back, and I can point out the good things and the bad things. Being able to see themselves on video helps people learn as they get to see themselves as the jury might see them.
I also explain that being able to provide details and examples makes someone’s testimony more memorable and believable. It sounds simple, but many people do not know this. For example, saying, “She does not like me,” is not particularly persuasive. It is better to add details and examples, like, “She would call me lazy. When I was around her, she would not even look at me. She would say things under her breath that I could tell were about me.”
A third major challenge is preparing a defendant for cross-examination by the prosecutor. Very few people are used to cross-examination. In court, you are required to answer the prosecutor’s questions. If you try to avoid answering the question, or if you try to argue with the prosecutor instead of answering the question, it is obvious to the jury, and it looks bad.
Since the prosecutor seems to believe the defendant is a criminal who is trying to get away with a crime, juries understand, and to some extent expect, the prosecutor to treat the witness harshly. Prosecutors therefore often act outraged and offended when they are questioning a criminal defendant.
I believe that the best way to prepare a defendant for this is to try to come up with the hardest questions that a prosecutor may ask and to practice answering those questions on videotape. As a former prosecutor, I have a pretty good sense of some of the questions and strategies prosecutors like to use.
For example, a lot of prosecutors like to use the “everybody else is lying” line of questioning. It goes like this:
“You were here in court when all of those people took the witness stand and said you did it, weren’t you? And you say you didn’t do it, right? So, I guess all of those people are just a bunch of liars, then, is that what you are saying?”
I have to tell my clients that I cannot possibly anticipate every question a prosecutor will ask. I also tell them, though, that if they get used to answering tough questions in a way that looks credible, they should be able to handle whatever they are asked.
Preparing a criminal defendant to testify at trial is not easy. It takes advance work and critical thinking. It can also make or break the defense case. It takes experience and good judgment to know when to advise a criminal defendant to take the stand. If the defendant does testify, he or she should be prepared by a lawyer who knows exactly what they are doing.
If you, a family member or someone you know has been charged with crime in the Dallas area, contact Dallas criminal lawyer John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.