The choice whether to testify belongs to you, after you receive advice from your lawyer. Your lawyer can explain the risks and recommend that you remain silent, but counsel’s advice does not take away your personal choice. If you and counsel still disagree, raise it promptly and privately with counsel before the defense rests so there is time to address the issue without exposing privileged discussions to the jury. Rock v. Arkansas; People v. Hines.

Make the decision with the trial record in view

Ask counsel to walk through what your testimony would add and how cross-examination could affect it. Relevant questions include what you would say on direct examination, whether prior statements or convictions may be used to challenge your credibility, what evidence the judge may exclude, and whether your account fits the other evidence. The judge’s evidentiary rulings and the facts of your case matter; the right to testify does not make every proposed answer admissible.

Your lawyer handles trial tactics and should advise you candidly. But the ultimate choice to testify or remain silent is personal. In Hines, the California Supreme Court described the decision as the defendant’s after consultation with counsel. Advice against testifying is not itself a substitute for your decision. People v. Hines.

If the disagreement continues

Tell your lawyer before the defense rests that you want to testify and ask to discuss the decision outside the jury’s presence. Counsel can determine how to notify the court if an express conflict remains, while avoiding disclosure of privileged legal advice. Do not raise sensitive strategy in front of jurors or assume that a routine public colloquy is required in every case.

In People v. Wilson, the California Supreme Court reiterated that the defendant’s choice prevails when an express conflict with counsel reaches the court. The court found no such conflict in Wilson’s trial. California does not require a judge to conduct a routine on-record waiver colloquy whenever a defendant does not testify, and silence in the transcript alone does not establish that the right was denied. The result depends on what choice was actually made and what the record shows. People v. Wilson.

A disagreement does not automatically entitle a defendant to new counsel, a mistrial, a new trial, or reversal. If trial is underway, promptly discuss the choice, the evidence, and how to preserve the issue with counsel. The Law Offices of David S. Chesley handles California criminal trials. Call (800) 755-5174 to discuss the trial decision and record.