In representing clients, one of the most common concerns I hear is “Will I have to talk in court? What do I say to the Judge?” Many people may not be comfortable with public speaking. And for many of our clients, going to court is a new and frightening experience. It’s only natural that this is a source of anxiety for a lot of people. But remember, you have the right to remain silent.
If the idea of speaking at your upcoming court appearance has you worried, well, you shouldn’t. Because of the Fifth Amendment, speaking in court becomes your choice. Like most rules, there are a few exceptions that I will touch on below.
The right to remain silent
How does the Fifth Amendment protect you from speaking in Court? Simply put, the Fifth Amendment protects a person from being a witness against himself. This means that no one can make you talk in Court about your criminal case! It protects you from having to say anything or produce evidence that would hurt you. This is one of the strongest protections the Constitution provides to people accused of a crime. The Fifth Amendment applies even to traffic infractions like a speeding ticket.
So what about my case?
The question of whether to give up your Fifth Amendment right to remain silent and testify in your case is a complicated one. Ideally, people would only choose to do so after careful consultation with an experienced criminal defense lawyer. If a person does decide to make a statement about their case in Court, they must be honest. Additionally, you should know that the prosecutor is going to test your honesty by using any statements previously made by you. If what you say in court about the case is different in any way from what you said to the police, the prosecutor will likely bring that up as a reason for the judge not to believe you.
Sometimes it may seem like the police officer misunderstood what you were trying to tell them, or that they only got part of the story. You may want to talk in court to “set the record straight” or to clarify something the police say you said to them. But often, depending on what your prior statements were, we will not want to add to, qualify, or change those statements. So while there are sometimes exceptions, in the average case remaining silent in court is an important part of the defense strategy.
When do I talk in Court
Likely, your lawyer has already reached a conclusion about whether having you testify in your case will be helpful or hurtful. Your lawyer can and should give you advice about whether to testify (and hopefully you will heed their advice). But the decision whether or not to testify in your own defense is yours and yours alone.
In addition to testifying in their own defense, two other situations arise where a person may be called upon to speak in court:
First, if you are accepting any type of plea, the judge will typically ask you some simple questions to make sure you are entering the plea freely and voluntarily. The judge also wants to ensure that you enter the plea understanding the nature of the offense, what the government must prove to convict you, and the consequences of entering the plea. Judges use yes or no questions in the form of a plea colloquy to accomplish this.
Secondly, all criminal defendants have the opportunity to say something in mitigation before their sentence is handed down. This is called the right of allocution, and it is not mandatory. Some people say they are sorry while others address issues relevant to them. Many simply tell the Court that they have nothing to say. In felony cases, the right of allocution is an important tool that can aid in obtaining the best possible sentence. However, in many cases where there is a plea agreement and sentencing recommendation, it can be counterproductive to allocate.
Deciding when to talk in court is an important consideration in a criminal case. Likely, your attorney has already considered whether, in your specific case, it’s best to remain silent or give a statement. Having a skilled criminal defense attorney by your side in court to advise you about whether to give up your right to remain silent, and a host of other things, is crucial to obtaining the best result in your case.