Outside the courthouse where his trial is being held, Donald Trump said, “Well, I’m not allowed to testify. I’m under a gag order, I guess. I can’t testify.” The next morning the judge began the proceedings by saying that he needed to “clear up any misunderstandings” about the gag order preventing Trump from publicly remarking on witnesses and jurors. “I want to stress, Mr. Trump, that you have an absolute right to testify at trial, if that’s what you decide to do.” The gag order “applies to statements made outside of court. It does not apply to statements from the witness stand.”
Of course, Trump has a right to testify in his own defense. In 1987, the Supreme Court in Rock v. Arkansas held that under the Constitution, “it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” That is clear, but some of the comments about that right have been misleading. For example, I have heard on television commentators say that no defense counsel would ever allow Trump to take the stand.
The right to testify is so fundamental that the accused, not the lawyer, is responsible for the decision. Defense lawyers may advise whether they think it wise for a client to be sworn as a witness, and clients may follow that advice. However, if the lawyers advise against the testimony but the client insists on testifying, the accused testifies. The decision whether to testify is so fundamental that criminal defendants who indicate that they are not going to testify are asked by the court whether they know that they have a constitutional right to testify. The affirmative response is followed by questions to make sure that that decision not to testify is a knowing, voluntary, and intelligent one. Even half-wit defense attorneys know this and discuss the right to testify with their clients in planning a defense. It would be incompetent lawyering of the highest degree if Trump’s lawyers had not done so. Of course, it is possible that Trump was not listening when the subject came up, or perhaps he knew it was BS when he said that he can’t testify.
There are no comprehensive records of how often the accused testifies. Even so, legal “experts” give us this “information” although it is often inconsistent. In a few minutes online I found some commentators saying that criminal defendants “rarely” testify while others said that defendants without criminal records testify 65% of the time and those with criminal record 45% of the time. And so on. In short data are sparse.
Similarly, I have heard commentators saying that a conviction is more likely when the defendant testifies and from others that a conviction is less likely. Such pronouncements are mere hunches. We would have to run trials twice with the defendant testifying in one and not the other to get information about the effect taking the stand has on the outcome. Take what the legal experts say with a giant grain of salt.
We do know that special evidentiary rules come into effect when a criminal defendant testifies. The jury may hear evidence they would not otherwise hear. Like all witnesses, the testifying defendant’s credibility is at issue. He can be cross-examined about matters that go to his credibility that otherwise would not be admissible. Most often this concerns criminal convictions and activities. The jury may not hear about prior convictions if the defendant remains mum. But if he testifies, the defendant may be asked about them under the theory that a person with certain convictions is less likely to tell the truth than someone who has not been similarly convicted.
Trump has no criminal convictions, but the doctrine goes beyond convictions to other actions that can affect the issue of credibility. The trial judge has ruled that if Trump testifies, he can be asked about the yearslong fraud that a civil jury found he was involved with; his violation of a gag order in that case; and about the defamation case of E. Jean Carroll. If he does not testify, the jury will not hear about these matters.
Defense attorneys have often said that the most difficult decision they have is whether to advise a client to take the stand. I have no idea what Trump’s attorneys will recommend or whether Trump will follow the advice. What is clear, however, is that Trump has a constitutional right to testify and to control the decision as to whether he will testify. And therein lies an irony.
Trump ran for president saying that he would appoint pro-life, pro-Second Amendment, “conservative” judges. He was not very explicit about what he meant by conservative judges, but the assumption borne out by his appointments is that they would be “originalist” ones, that is, they would interpret the Constitution as it originally was. They would not find constitutional rights that did not exist when the Constitution and its amendments were ratified.
The Constitution, however, does not contain a right to testify. Instead, at the time the Constitution was adopted, criminal defendants were prohibited from testifying. The law in all the states and the federal courts expressly forbade testimony from criminal defendants. That may seem strange to us now. We might think that fairness requires the opportunity to testify, but that was not the law. That bizarre stricture only began to break down in the Civil War era when Maine was the first to allow defendants to take the stand. Soon other states and the federal courts allowed such testimony, and eventually criminal defendants could testify in all jurisdictions.
The Supreme Court in Rock v. Arkansas that pronounced that there was a constitutional right for a criminal defendant to testify was not an originalist court. If they were true to their principles, originalist judges — including the ones appointed by Trump — would not have come to that conclusion. Indeed, the present court, if given the chance, could abolish the constitutional right since it is not specifically included in the Constitution. Trump has the constitutional right to testify, but only because non-originalist judges said so.
