The two most difficult decisions for any Massachusetts OUI Attorney are typically:

Should the client testify;

& should we elect a bench or jury trial.

In this Blog, I will discuss the decision whether or not to testify at trial. When preparing for trial, a client will have some piece of evidence they want to get in; either about the weather, what they were wearing or contesting something that the officer said at trial is not true. If the client does not wish to testify, and there are no other witnesses to contest or dispute any of these points, than the jury will not hear this evidence.

One of the calculations in determining whether to testify is whether the evidence that you want to dispute from your testimony is more important than the additional evidence that the prosecution may gain from your testimony. For Example, if you told an officer that you had four beers, and nothing else, your testifying would bring out the following facts:

1. When you had those beers

2. Over what period of time

3. The District Attorney would ask if it was really four, could it have been more?

If you had those beers over a short time period, it may be more harmful to the case to testify even if that means that they only way to challenge other statements of the officer is by minimizing it during cross examination. When your attorney cross examines the police officer, it is an opportunity to tell your story through the arresting officer. While it will not have the same effectiveness as if you testified, in many cases it can bring out your story sufficiently to dispute a point made by the officer.

Under the Fifth Amendment to the Constitution, no individual can be compelled to testify at a criminal trial. In fact, on request of the defense, the judge will instruct the jury that it can draw no adverse inference from the failure of the defendant to testify during the trial.

In most of the cases that I take to trial, the defendant will not testify at trial. While some attorneys call their clients more frequently, my belief is that often the best decision is to remain silent and hold the Government to their high burden of proof, of beyond a reasonable doubt. However, the client always has the right to insist on testifying even against the advice of their lawyer because it is such an important decision in the case.