Can The Prosecutor Call The Defendant As A Witness?

  • Time to read: 3 min.

This is a great question, and the answer is probably not.

Let us explain.

Can The Prosecutor Call The Defendant As A Witness? (EXPLAINED)

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Trial Procedure: Calling The Witness

Let’s start with a hypothetical trial.

The prosecution is putting on his case.

He has the right to call witnesses to prove his case.

Technically, he could deliver a subpoena to the defendant to compel him to attend the stand, or he could ask the court to call him to the stand.

Once seated and sworn in, the defendant would then have the right to testify, or to assert his right to silence via the Fifth Amendment.

Once the defendant asserted his right to silence, he would then return to his seat and the trial would move on.

Prejudice To The Defendant

The problem with this scenario is that while the defendant has the absolute right to silence, jurors don’t really understand that his right to silence does not indicate guilt.

In fact, jurors that observe a witness invoke the 5th Amendment are more like to conclude that the witness (the defendant) has something to hide.

It is for this reason that in any jurisdictions that it is considered unethical to call the defendant to the stand just for the purpose of hearing the defendant assert the 5th Amendment in front of jurors.

Arranged In Advance

These days, to avoid ruffling the feathers of the judge and a potential mistrial of the case, the parties would resolve in advance (and outside of the presence of the jury) the question of the defendant’s testimony.

If the prosecution wants to call the defendant in his case-in-chief, he’d let the defense attorney know, and allow the defense attorney to confer with his client about it.

They’d make the decision about how to proceed in advance, and then advise the judge about it.

After all, there might be good reasons for a defendant to testify in the prosecution’s case-in-chief.

As a former defense attorney, I’m having a hard time thinking of one, but I’m certain that it is possible.

But in any event, even if the prosecution somehow manages to get the defendant on the stand, the defendant has the right to refuse to answer questions.

Neither the judge nor the prosecution can overcome his right to remain silent.

Could The Prosecution Even Call The Defendant To The Stand?

This will depend significantly on the jurisdiction and how the judge manages the courtroom.

And I can’t say I have been everywhere or seen everything.

But if the prosecution knows for a fact that the defendant will assert the 5th, then I conclude from that the prosecution can’t even call the defendant to the stand.

There’s too much risk that the jury will be influenced inappropriately.

The risk to the prosecution and the case is that a defendant could use such a small misstep or tactic as the basis for appealing the conviction or in a motion for a new trial.

The prosecutor’s office is very aware of the budgetary considerations of trial.

Having to try a criminal case again would potentially prevent another worthy case from reaching trial, or delaying it significantly.

Practically there is no reason to mess around with a case that the prosecution is already confident he can win.

(and if he is not confident he can win it, then the case has no business going to trial, by the way)

Wrap Up

In the end, it might be possible for the prosecution to call the defendant to the stand.

But only with some advance planning and coordination, so the judge doesn’t lose the top of his head.

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Can The Prosecutor Call The Defendant As A Witness