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Can A Judge Ask If You Waive Your Right To Testify?


Under the Fifth Amendment to the United States Constitution, you cannot be compelled to “be a witness against” yourself in a criminal case. In other words, you cannot be forced to testify at your own criminal trial. Of course, you are free to waive that right and testify, but that decision must be made voluntarily and without any coercion from the prosecution or the court.

The U.S. 11th Circuit Court of Appeals recently addressed whether or not it is even proper for a trial judge to explicitly ask a criminal defendant on the record if they wish to testify. The defendant in this particular case, United States v. Anderson, maintained it was legal error to even ask the question. The appellate court disagreed, however, and rejected this and other grounds offered on appeal from the defendant’s convictions on white collar criminal charges.

The underlying case basically involved allegations that the defendant, who owned a shrimping business, falsely inflated his business expenses in order to obtain federal subsidies earmarked for the domestic shrimp industry. Prosecutors tried the defendant in federal court for mail fraud, making false statements to the government, and money laundering.

During the trial, the defense attempted to elicit testimony from a government agent regarding a possibly exculpatory statement made by the defendant. The trial judge excluded this statement after the prosecution objected. The judge then remarked that the defense was trying to get the exculpatory statement admitted without the defendant having to testify.

After the defense rested its case, the judge asked the defendant (outside the jury’s presence) if he understood that he had a right to testify and whether he had made an “independent decision not to testify.” The defendant replied he understood his rights and then asked to consult with his attorney before answering the second part of the question. After consulting with his lawyer, the defendant said he was “unsure” if he wanted to testify. The judge pressed for a decision, explaining the trial could not move forward otherwise. The defendant then decided to testify.

The jury subsequently convicted the defendant. On appeal the defendant raised multiple grounds for reversing his conviction, including the trial judge’s questioning regarding his right to testify. The 11th Circuit rejected all of these grounds and upheld the conviction. The appellate court said there was “nothing objectionable” about the judge’s “straightforward and neutral inquiry.” To the contrary, the judge’s questions were intended to “protect” his right to testify if he wished; the 11th Circuit did not view this is an attempt to improperly influence the defendant’s decision or “usurp” the role of his attorney in formulating a trial strategy,

Contact Orlando Criminal Defense Attorney Jose Baez Today

The right to remain silent is one of the most basic constitutional protections a criminal defendant has. It is therefore critical to work with an experienced Orlando criminal defense lawyer who can help ensure nobody improperly pressures you into testifying against yourself. Contact the Baez Law Firm today if you need representation or legal advice.


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