Inside the high-risk decision to testify in your own defense

By Eric Levenson, CNN

(CNN) — To speak, or not to speak?

That is the question criminal defendants face at trial.

In three recent high-profile criminal trials, the defendant answered that question with a firm yes and took the stand to give their side of the story. It’s a rare, risky move – and the strategy did not result in an acquittal in any of the cases.

Brendan Banfield, accused of killing his wife and another man in an elaborate scheme with the family’s au pair, was found guilty of double murder despite his testimony denying any plot. Colin Gray, the father of a teenage Georgia school shooter, was found guilty of murder and manslaughter even as he pleaded he did not have warnings about his son’s violent plans.

Gerhardt Konig, the Hawaii doctor accused of trying to kill his wife on a hike, was convicted of attempted manslaughter after he claimed she attacked him first. That represented a partial victory for him, as the jury rejected a more serious attempted murder charge.

All three men await sentencing.

The results of those cases underscore the risks and challenges of testifying in your own defense. Defense attorneys generally recommend against taking the stand, wary of subjecting a defendant to a rigorous cross-examination from the prosecution.

“I don’t like to do it. I don’t think it’s advisable,” said CNN legal analyst and defense attorney Joey Jackson. “I think it’s troubling and problematic, and I think that the pitfalls oftentimes outweigh the realities of having your guy get on the witness stand.”

Elyse Hershon, a criminal defense attorney based in Boston, similarly highlighted the risks of putting a layperson defendant on the stand.

“It’s always dangerous to expose your client to cross-examination because usually they are someone who has not testified before, is not involved in the law or government or is a trained witness,” she said. “So when a trained prosecutor gets up to cross-examine them, it can get disastrous pretty quickly. And once your client is on the stand, there’s not a lot you can do as their defense lawyer to protect them.”

Still, there are exceptions to the rule, particularly when a defendant claims self-defense.

There are examples on each side of the coin. Notably, the teenager Kyle Rittenhouse in his 2021 murder trial and Robert Durst in his 2003 murder trial testified in their own defense and were found not guilty. Perhaps longer is the list of those who decided to testify and were then convicted, among them Jodi Arias, former police officer Kim Potter and South Carolina attorney Alex Murdaugh.

The decision is ultimately up to the defendant. Attorneys can offer their advice and recommendation, but by law the person on trial gets the final say.

“You can be like, ‘Don’t take the stand,’ and they’re like, ‘No, I’m taking the stand,’ and you have to let them because it’s their right,” Hershon said.

The drawbacks of testifying

When a defendant takes the stand, they first answer questions from their own attorney, who will ask straightforward and open-ended prompts to get them to tell their side of the story.

But then comes cross-examination. Over hours or even days of scrutiny, defendants may contradict themselves or lose their cool as every word, gesture and glance is picked apart.

“The direct examination, they fly through it. It’s simple, it’s easy and they look good,” said Jean Casarez, CNN’s trial correspondent. “On the cross-examinations, a skilled prosecutor is going to ask the questions where they get caught, where the inconsistencies come out, maybe they start to get angry on the stand, which does not help them at all, and that’s when a case can really go into the hands of the prosecution before that jury.”

Jackson said he believes testifying is too risky and can backfire.

“Whenever a defendant contradicts themselves on the witness stand, it’s the death knell,” he said. “There’s too much scrutiny, and any good prosecutor on cross-examination is going to kill them.”

In Banfield’s double-murder case, for example, the former IRS officer testified he had an important work meeting with a manager on the morning of the killings. Prosecutors subsequently called to the stand Banfield’s former supervisor, who testified there was no such meeting, undermining Banfield’s account.

For Jackson, a strong defense case is built on cross-examining every prosecution witness and trying to create reasonable doubt for the jury. But a defendant taking the stand can overshadow that work and reduce the trial to their believability.

“Whenever a defendant testifies, it becomes about the defendant,” he said. “It doesn’t become about the reasonable doubt that you’ve established.”

Another disadvantage to taking the stand is it can open the door to questions about a defendant’s past criminal record or prior bad acts.

The defense can try to get this past evidence limited or excluded, but once a defendant takes the stand, that evidence can come in and “create a mess,” Hershorn said. This may not be relevant to the case at hand but can damage the defendant’s credibility in the jury’s view.

When taking the stand may make sense

There are exceptions to the general rule.

In a self-defense case, or a defense of others case, taking the stand may be worth the risk because the defendant’s state of mind is so crucial. For example, Konig testified his wife shoved him first, and Banfield said he killed a supposed intruder who had attacked his wife.

“Legally you don’t have to (testify),” Casarez said, “but somebody’s got to tell the story of what happened and why you had to kill someone, and you’re the only one who knows that answer, and so that really pushes a defendant to have to take the stand.”

In some cases, though, videotaped statements to police or written documents can get the defendant’s viewpoint across without them having to take the stand, Jackson said.

“They may not have technically, quote-unquote, ‘testified’ but they kind of did testify,” he said.

For example, in Colin Gray’s case, the jury saw videos of him speaking to police prior to his arrest in which he defended his actions. Even so, he took the stand at trial.

Another consideration is the defendant’s educational and professional background. A law enforcement officer like Banfield, a lawyer like Murdaugh or a doctor like Konig may come off better to the jury, regardless of the details of the case.

“Somebody who has a little bit more credibility in their community can come across as more credible to a jury, even though they’re not supposed to evaluate it in that light,” Hershorn said. “It’s kind of human nature that we do.”

In the end, attorneys and defendants try to carefully consider the benefits and risks of putting a defendant on the stand.

“In any situation, if someone is very eager to take the stand, it’s important to slow it down and really go through the pros and cons,” Hershorn said.

The Fifth Amendment guarantees the right to remain silent, and most defendants exercise that right and decline to testify. When that happens, the judge instructs jurors not to hold that against the defendant – but that’s a challenge for any curious person.

“From my experience in talking to jurors, they always want to know what the defendant’s story is. They want to hear from the defendant,” Casarez said. “I think it’s human nature, you just want to hear from them.”

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