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male - 42 years, United States
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Blog / Darren Chaker

Monday, 29 October 2012 at 14:26

While not always advisable, the right to testify in trial is absolute. This brief article will concentrate on several issues in regards to the right to testify and my very own thoughts why invoking the right may not be advisable.

The authority to testify has multiple constitutional underpinnings. America Top court has held "there isn't any rational justification for prohibiting the sworn testimony from the accused, who above all others might be capable of satisfy the prosecution's case." ( Ferguson v. Georgia, supra, 365 U S. at p. 582 ) "A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he might not present himself like a witness..." ( Rock v. Arkansas, supra, 483 U.S. at p. 52.) Thus, "[t]his right [to offer testimony] reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the individual to testify." ( Rock v. Arkansas, supra, 483 U.S at p 51.)

Preventing a defendant from testifying at his own trial deprives a defendant of these "basic protections,... [without which]... a criminal trial cannot reliably serve its be the vehicle for resolution of guilt or innocence, [citation], and no criminal punishment may be thought to be fundamentally fair." ( Rose v Clark (1986) 478 U.S. 570, 577-578 [106 S.Ct. 3101, 92 L.Ed.2d 460].) "No matter how daunting the task, the accused therefore has the to face jurors and address them directly without regard to the probabilities of success. As with the right of self-representation, denial of the accused's right to testify isn't amenable to harmless-error analysis. The best 'is either respected or denied; its deprivation cannot be harmless.' " ( State v. Dauzart, supra, 769 S.2d at pp. 1210-1211, citing McKaskle v Wiggins (1984) 465 U.S. 168, 177, fn. 8 [104 S.Ct. 944, 79 L.Ed.2d 122].).

Darren Chaker

Consequently, a defense attorneys failure to permit his client the right to testify is subject to automatic reversal or is governed under a Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] ( Chapman) standard of review. ( People v. Johnson (1998) 62 Cal.App.4th 608, 634-636 [applying Chapman]; People v. Hayes (1991) 229 Cal.App.3d 12261, 1234, fn. 11 [same]; People v. Harris (1987) 191 Cal.App.3d 819, 826 [applying automatic reversal])

To sum it up, even though the to testify is absolute, keep in mind it is not always advisable. Sometimes a Defendant doesn't have choice but explain his conduct in the hope a jury will believe him. Often enough, a serial Defendant has criminal convictions that a jury would not know about unless the Defendant testifies, or doesn't have proper court demeanor in the sense both vernacular and also the art of persuasion through decent communication skills will not be conveyed to the jury.

Darren Chaker

Because of the above, a Defendant might not see the tactical benefit of embracing his attorneys choice and refuse to simply stay quiet, look humble, and unswayed in what the state has to offer in support of guilt. However, if the Defendant insists to invoking his right to 'tell his side from the story' the next person he may tell it to is his cell mate.

I litigated a leading edge First Amendment case for 7 of their Ten year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court's unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also accustomed to strike down Nevada's analogous statute forcing the legislature to rewrite what the law states, but additionally nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used because the backbone authority in Gibson v. Town of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination.



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