Should I Testify in My Criminal Case? Understanding Your Right to Speak—or Stay Silent
One of the most important decisions a defendant will make in a criminal trial is whether to testify. As a Tucson criminal defense attorney serving clients throughout Pima County, I often get asked, “Should I take the stand in my own defense?” It’s a question that deserves thoughtful discussion, and the answer is never one-size-fits-all.
In this post, I’ll walk you through the constitutional right to testify (or not), what juries are told when a defendant stays silent, the ethical rules lawyers must follow, and the strategic considerations that go into this crucial choice.
Your Constitutional Right to Remain Silent or Testify
The U.S. Constitution’s Fifth Amendment gives you the right not to testify at your own criminal trial. That right is so important that it’s protected even if you’re completely innocent. No one can force you to take the stand, and the judge and jury are not allowed to hold your silence against you.
Arizona law reflects these same principles. In every criminal case in Pima County and across the state, the defendant is told they have the personal right to testify or remain silent. The choice belongs entirely to the defendant—not to the judge, not to the prosecutor, and not even to the defense attorney.
That means your attorney can offer guidance and advice, but ultimately, only you can decide whether to take the witness stand in your own defense.
Jury Instructions: What Are Jurors Told If You Don’t Testify?
If you choose not to testify, Arizona courts have a special instruction that the judge reads to the jury. It’s meant to protect your rights and ensure a fair trial. The instruction says:
"The defendant has a constitutional right not to testify. The decision whether or not to testify is left to the defendant, acting with the advice and assistance of counsel. You must not consider the decision not to testify in any way and must not let it influence your verdict in any way."
In practice, this means jurors are supposed to base their decision only on the evidence presented at trial—not on whether they heard from the defendant. But of course, jurors are human. Sometimes they wonder why a defendant stayed silent. That’s why your defense attorney must address this issue directly and skillfully in closing arguments.
If you hire a skilled criminal defense lawyer in Tucson, you should expect them to walk you through how that jury instruction works and help you weigh the pros and cons of testifying in light of how the jury might perceive it.
Reasons to Testify in Your Own Defense
There are situations where taking the stand can genuinely help your case. Here are a few examples:
You have a strong explanation that clears up misunderstandings or counters the prosecution’s version of events.
Your credibility matters. If the entire case hinges on whether the jury believes you or another witness, testifying might tip the scales.
There is no damaging criminal history. If you don’t have prior convictions, there’s less risk that the prosecutor will bring up harmful past behavior.
You present well. If you come across as honest, reasonable, and composed, your testimony may help humanize you to the jury.
In short, if you have something to say that supports your defense and you can withstand cross-examination, testifying may be the right move.
Reasons Not to Testify
In many cases, staying silent is the best option. Here’s why:
Cross-examination is tough. Prosecutors are trained to ask leading questions, highlight inconsistencies, and provoke emotional reactions. Even innocent people can get flustered.
Your demeanor could hurt you. If you seem nervous, angry, or evasive—even for innocent reasons—jurors may read it the wrong way.
You have prior convictions. If you’ve been convicted of certain crimes, the prosecutor might be allowed to use that information to challenge your credibility.
Your story has weak points. If your explanation doesn’t fully add up, testifying might do more harm than good.
An experienced Tucson criminal defense attorney will review your case carefully and give you honest feedback about the risks and rewards of testifying.
Your Lawyer’s Ethical Duty: No Perjury Allowed
Now let’s talk about something many people don’t realize: defense attorneys are bound by strict ethical rules. One of the most serious rules is this:
An attorney may not knowingly present false testimony or allow a client to commit perjury.
If a client tells me they want to testify and I have reason to believe they are going to lie under oath, I cannot allow it. Doing so would violate Arizona’s Rules of Professional Conduct and potentially result in disciplinary action.
That doesn’t mean I stop defending the client. There are procedures in place (like allowing the client to testify in narrative form) that protect the client’s rights without forcing the lawyer to be part of false testimony. But it’s a tough ethical tightrope.
In every criminal case—whether it’s a DUI in Tucson, a domestic violence charge in Oro Valley, or a felony in Pima County Superior Court—you want an attorney who is both strategic and ethical. You should expect transparency about the risks and a clear explanation of your legal and moral obligations.
Real Talk: What This Looks Like in a Pima County Courtroom
Let’s say you’re on trial for aggravated assault in Pima County Superior Court. The State presents a witness who says you threw the first punch. But there’s a security video that shows you backing up before any physical contact. The video is grainy, and it’s hard to tell exactly what’s happening.
In a case like this, your testimony might be the key. Maybe you explain that you were acting in self-defense. Maybe you point out details the video doesn’t show. If your story is credible, your testimony can strengthen the self-defense argument.
On the other hand, let’s say you have a prior felony conviction for a similar offense. The prosecutor may be allowed to bring that up if you testify. Now the jury is hearing about something you did years ago that has nothing to do with this case. That’s a huge risk.
This is why your Tucson defense lawyer needs to evaluate everything—the law, the facts, your background, and the jury dynamics—before you make the call.
Frequently Asked Questions
Q: Will the jury think I’m guilty if I don’t testify?
A: They’re not supposed to. The judge will tell them clearly that they cannot consider your silence as evidence of guilt. Most jurors follow that instruction. But your lawyer should still prepare to address this during closing argument.
Q: Can my lawyer stop me from testifying?
A: No. Your attorney can advise you, but the final decision belongs to you. If you choose to testify against your lawyer’s advice, they still have to honor that choice—as long as you’re telling the truth.
Q: What if I change my mind during trial?
A: That happens sometimes. If you initially planned to testify but decide against it (or vice versa), the court can usually accommodate the change. But timing matters. You need to communicate clearly with your attorney and be prepared.
The Bottom Line: Testifying Is a Strategic Decision
Deciding whether to testify is one of the biggest choices you'll make in a criminal case. It's also one of the most personal. No two cases are alike, and no two clients are the same.
As a criminal defense attorney in Tucson, I take the time to walk each client through the full range of consequences. Together, we review the evidence, anticipate how the jury might react, and decide what gives us the best chance of a not guilty verdict or favorable outcome.
Testifying can be powerful. But so can silence—especially when it keeps the focus on the weaknesses in the State's case.
Need Help with a Criminal Case in Tucson or Pima County?
If you’re facing charges in Tucson, Oro Valley, Sahuarita, Marana, or anywhere in Pima County, don’t leave your future to chance. You deserve an attorney who understands Arizona law, local courtroom dynamics, and the strategy behind every decision—including whether to testify.
Call AJB Law Firm, LLC for a consultation. I’ll help you make sense of your options and stand by your side every step of the way.
Amanda Bynum, Esq.
Tucson Criminal Defense Attorney | Former Public Defender | Trial Strategist
Serving Pima County and Southern Arizona with experience, compassion, and grit.
