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Tuesday, October 30th 2012

1:27 AM

Darren Chaker

Although not always advisable, the authority to testify in trial is absolute. This brief article will focus on a few issues concerning the to testify and my own thoughts why invoking the best might not be advisable.

The right to testify has multiple constitutional underpinnings. The United States Top court has held "there is no rational justification for prohibiting the sworn testimony of the accused, who most importantly others might be in a position to meet the prosecution's case." ( Ferguson v. Georgia, supra, 365 U S. at p. 582 ) "A defendant's opportunity to conduct their own defense by calling witnesses is incomplete if he may not present himself like a witness..." ( Rock v. Arkansas, supra, 483 U.S. at p. 52.) Thus, " his right [to offer testimony] reaches past the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify." ( Rock v. Arkansas, supra, 483 U.S at p 51.)

Preventing a defendant from testifying at their own trial deprives a defendant of these "basic protections,... [without which]... a criminal trial cannot reliably serve its function as a vehicle for resolution of guilt or innocence, [citation], with no criminal punishment may be regarded as 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 job, the accused therefore has got the to face jurors and address them directly without regard towards the probabilities of success. Just like the best of self-representation, denial from the accused's to testify is not amenable to harmless-error analysis. The right 'is either respected or denied; its deprivation can't 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 authority to testify is subject to automatic reversal or perhaps is governed within 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 (199 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, bear in mind it is not always advisable. Sometimes a Defendant has no 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 learn about unless the Defendant testifies, or does not have proper court demeanor meaning both vernacular and also the art of persuasion through decent people skills will not be conveyed to the jury.

Darren Chaker

Because of the above, an offender might not begin to see the tactical benefit of embracing his attorneys choice and won't simply stay quiet, look humble, and unswayed in what their state provides for guilt. However, if the Defendant insists to invoking his right to 'tell his side from the story' the next one he may tell it to is his cell mate.

I litigated a leading edge First Amendment case for 7 of its 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 had been also used to strike down Nevada's analogous statute forcing the legislature to rewrite what the law states, but additionally nullified an identical Washington statute too. (De La O v. Arnold-Williams, 2006 WL 278127 and used because the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is really a leading case on viewpoint discrimination.
5 Comment(s).

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Wednesday, November 7th 2012 @ 11:01 PM

Posted by Noona:

Although not always advisable, the authority to testify in trial is absolute. This brief article will focus on a few issues concerning the to testify and my own thoughts why invoking the best might not be advisable.
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The right to testify has multiple constitutional underpinnings. The United States Top court has held "there is no rational justification for prohibiting the sworn testimony of the accused, who most importantly others might be in a position to meet the prosecution's case." ( Ferguson v. Georgia, supra, 365 U S. at p. 582 ) "A defendant's opportunity to conduct their own defense by calling witnesses is incomplete if he may not present himself like a witness..." ( Rock v. Arkansas, supra, 483 U.S. at p. 52.) Thus, " his right [to offer testimony] reaches past the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify." ( Rock v. Arkansas, supra, 483 U.S at p 51.)
Wednesday, December 12th 2012 @ 12:46 PM

Posted by susi:

Because of the above, an offender might not begin to see the tactical benefit of embracing his attorneys choice and won't simply stay quiet, look humble, and unswayed in what their state provides for guilt. However, if the Defendant insists to invoking his right to 'tell his side from the story' the next one he may tell it to is his cell mate.
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Thursday, January 10th 2013 @ 9:50 AM

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