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What Happens if I Decide Not to Testify at My Own Criminal Trial?

In any criminal proceeding where you are a suspect (or the defendant), you have the right to keep silent and not say anything. This applies not only to interrogations by the police, but also during any criminal trial. In other words, if you are tried for a crime, you cannot be compelled to testify as a witness in the case. You may choose to speak–and in doing so, subject yourself to cross-examination by the prosecution–but if you elect to remain silent there is nothing the state can do to question you or otherwise compel your testimony.

Can You Ask Prospective Jurors if They Will Respect Your Right to Remain Silent?

Despite this, some people feel like they should testify because they fear saying nothing will “make them look guilty” to the jury. But as a matter of law, a juror cannot “infer” a defendant’s guilt from a refusal to testify. The trial judge will explicitly instruct the jurors on that point before directing them to deliberate.

Maryland’s appellate courts have also made it clear that a defendant may question prospective jurors on their ability and willingness to comply with such an instruction. The Court of Special Appeals recently addressed this situation. In Grant v. Maryland, Baltimore prosecutors charged a defendant with committing armed robbery and shooting another man with a gun. The first trial ended in a mistrial due to a discovery violation committed by the prosecution.

Before the second trial began, the defendant submitted the following question for the judge to ask during jury selection:

If the Defendant chooses not to testify the jury may not consider his silence in any way in determining whether he/she is guilty or not guilty. Is there any member of the jury who is unable or unwilling to uphold and abide by this rule of law?

The trial judge declined to pose the question, reasoning that this subject would be adequately covered when later instructing the jury after all of the evidence was heard. The jury that ultimately selected proceeded to find the defendant guilty.

The Court of Special Appeals held the judge erred in refusing to ask the question during jury selection. The Court cited a ruling issued by the Maryland Court of Appeals last year, Kazadi v. State, which explicitly held that when a defendant submitted this type of question, the judge was required to ask it during jury selection. Even though the judge in this case ruled before the Court of Appeals decided Kazadi, the Court of Special Appeals said the defendant was still entitled to the benefit of that ruling. As such, the case was returned to the circuit court for a third trial.

Contact St. Mary’s County Criminal Defense Attorney Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.