Colorado Criminal Law – Understanding Your Fifth Amendment Right When In Trial

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Criminal Law – Understanding Your Fifth Amendment Rights When In Trial – If you have decided to reject all plea bargains and, hopefully with your lawyer’s advice – proceed to trial, you need to be aware of the second most important decision made in the criminal justice system – will you testify at your trial? (The first most important decision is the decision to go to trial).

The Meaning Of The 5^th Amendment In Your Colorado Criminal Trial

Perhaps one of the most important decisions you will make in a criminal case if you have decided to go to trial – is the decision to testify or not testify.

As opposed to a civil case where any person, including the Defendant can be called as a witness, a person on trial for a criminal offense has a Constitutional right to testify or not testify at their trial and that right is “so inherently personal and basic that it can be waived only by the defendant and not by his attorney and that to be effective the waiver must be made voluntarily, knowingly and intelligently.”

The Source Of The Constitutional Right To Remain Silent Or To Testify In A Colorado Criminal Trial

The source of the right to remain silent or to testify at a person’s own criminal trial is sourced from Section 18 of article II of the Colorado Constitution. The Colorado Constitution protects every person from being “compelled to testify against himself in a criminal case.” This same protection is found in the Fifth amendment to the United States Constitution which is made applicable to the states by the Fourteenth Amendment.

The Constitutional Right to testify in one’s own defense is “so inherently personal and basic that it can be waived only by the defendant and not by his attorney and that to be effective the waiver must be made voluntarily, knowingly and intelligently.”

Both of these privileges against self-incrimination protect an individual from being involuntarily called as a witness against himself in his own criminal prosecution. Our Colorado criminal justice system is founded on the fact that all criminal prosecutions are “accusatorial” and not “inquisitorial” The right to remain silent must be a product of the accused “unfettered exercise of his own will.” The decision NOT to testify at a person’s own criminal trial further means that no jury or judge can use that decision not to testify to draw adverse inferences from the exercise of that privilege at trial.

Prosecutor Cannot Argue Or Even Comment At Trial On The Defendant’s Refusal To Testify

A prosecutor can NEVER comment on an accused’s silence and the Trial Judge actually must instruct the jury that the Defendant’s decision not to testify is NOT evidence of guilt. On the other hand – IF a Defendant takes the stand at his or her own criminal trial and testifies on his or her own behalf, he or she is then considered a witness like all others and is subject to cross-examination. It would be patently unfair to allow a Defendant to testify as to his or her version of the facts and then not be subjected to rigorous cross-examination as is the case with all witnesses for and against the State or the accused.

The Decision To Waive The Right To Testify Must Be Made Voluntarily, Knowingly and Intelligently

The consequences of waiving the right to testify or not to testify at trial and either forgo or exercise the right to testify must be taken very, very seriously. The right to testify and take the stand, or the right not to testify (to remain silent), is made after the Trial Judge determines – through the careful questioning of the Defendant – that the making of that decision is a personal decision of the accused and that the was made after careful deliberation and it was made “voluntarily, knowingly and intelligently.”

The Trial Judge’s determination is made after the State has rested it’s case. The procedure is call an advisement and is performed outside the presence of the jury. It is commonly referred to as a “Curtis” Advisement.

Here is that advisement:

For a waiver to be knowing, voluntary, and intelligent, a Defendant must know that he has the right to testify, the consequences of testifying, and that he may take the stand notwithstanding the contrary advice of counsel.

The Curtis Advisement informs the Defendant of the following:

(1) the defendant has a right to testify;

(2) if the defendant wants to testify, no one can prevent him or her from doing so;

(3) if the defendant testifies, then the prosecution will be allowed to cross-examine him or her;

(4) if the defendant has been convicted of a felony, the prosecutor will be entitled to ask about it and thereby disclose it to the jury; and

(5) if a felony conviction is disclosed to the jury, then the jury can be instructed to consider it only as it bears on the defendant’s credibility.

A Colorado Criminal Defense Lawyer Cannot Overbear The Will Of The Defendant

This precious “option” is so fundamentally personal it can be waived only by the Defendant and not by his attorney. The decision itself, as noted, must be made in a voluntary, knowing and intelligent manner. If the right is “waived” – meaning it is the intentional relinquishment or abandonment of a known right or privilege- that waiver cannot be the result of undue pressure by the Defendant’s Colorado criminal lawyer. The decision must be made “voluntarily, knowingly and intelligently.”

What does that really mean?

What Does Knowingly, Intentionally (or Intelligently), and Voluntarily Really Mean?

A waiver that is knowingly made means that:

• the person waiving the right at issue must “know” of the existence of the right and any and ALL other information legally relevant to the making of an informed decision either to exercise or relinquish that right.

A waiver that is intentionally or intelligently made means that:

• the person waiving that right must be fully aware of what he is doing and must make a conscious, informed choice to relinquish the known right.

A waiver that is voluntarily made means that:

• the decision is a conscious choice and is being made “voluntarily,” that is, not coerced by the state either physically or psychologically.

The Trial Judge will be sensitive – during this advisement hearing – not to suggest by words, tone of voice or demeanor of his or her opinion as regards the Defendant’s decision.

The Tension Between A Colorado Criminal Lawyer And His Or Her Client Over Testifying At Trial

A Defendant will probably hear about his or her right to remain silent many times during the criminal case process. They may hear it during the Miranda Advisement at the time of the arrest, they may hear it at their first in court advisement, at the first charge of the jury before the trial begins, and of course at the Curtis Advisement.

A Trial Judge has a clear and ever present duty at ALL times to make certain that the Defendant understands the right to remain silent – it is that important to our system of justice.

It is also the duty of every Colorado criminal defense lawyer to make certain that his client is advised of the full array of basic constitutional rights which obviously includes the right to remain silent. It is the criminal defense lawyer that is in the best position to take the necessary time to best explain, in detail, the possible benefits flowing from an exercise of that right at trial and remaining silent OR the very real consequences that may arise if the Defendant takes the stand and is subject to cross examination.

However it is also the sometimes the “overzealousness “ of the Colorado criminal defense lawyer in aggressively defending a case, that prevents that lawyer from seeing the possible damage to the case from the decision to subject his client to cross examination. This is often compounded by the naïve Defendant who just wants to tell “his side of the story” and is unaware of the danger’s that decision poses to the case.

The Accused Has A Natural Tendency To Tell “His Side Of The Story” – This May Prove Fatal To His Case

A Defendant’s desire to “tell his side of the story” is very powerful in any trial – long or short. The subjective nature of this decision can be such “overriding importance” to him that he fails to make the decision objectively and may not recognize that the decision may exponentially increase the likelihood of conviction.

The purpose of the Curtis Advisement is to make certain the accused understands:

“the real consequences of deciding to testify or not to testify, and that he and not his counsel is ultimately responsible for the decision as to whether the defendant testifies.”

The Trial Judge and the Colorado criminal defense lawyer must act together to make certain the Defendant makes a wise and thoroughly analyzed decision during the throes of a criminal trial and if a Defendant proceeds to trial “pro se” (without a lawyer) – the decision must be informed to an even higher degree than when a person has a lawyer as his side.

Colorado Criminal Law – Understanding Your Fifth Amendment Right When In Trial

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Understanding Your Fifth Amendment Right When In Trial.