The defendant does not have any burden to present evidence or testify in his own defense.
The Decision to Testify
No person who is charged in any criminal case shall be compelled to give evidence for or against himself. Fifth Amendment to the United States Constitution.
Whether or not to testify in one's own defense is considered a tactical decision to be made by the defendant himself after consultation with his attorney. Gibson v. State, 290 Ga. 6 (2011); Harris v. State 308 Ga. App. 456 (2011). Nevertheless, the final decision is left to the defendant. Cloud v. State, 290 Ga. 193 (2011); Hamilton v. State, 274 Ga. 582 (2001). An attorney cannot assist a defendant in presenting false evidence. Miller v. State, 295 Ga. 769 (2014). If an attorney believes a defendant intends to present perjured testimony the attorney must attempt to persuade the defendant not to commit perjuy. If the defendant still exercises the right to testify the attorney should let the defendant testify in narrative form as opposed to as directed by the attorney. Miller v. State, 295 Ga. 769 (2014)
If the defendant gave a statement to the police proclaiming his innocence, that statement is not admissible unless the defendant testifies. Sharpe v. State, 291 Ga. 148 (2012). Self-serving statements made by the accused, either before or after the commission of the alleged offense, are inadmissible hearsay. Robinson v. State, 246 Ga. App. 576 (2000); Nunez v. State, 237 Ga. App. 808 (1999).
The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure. O.C.G.A. § 24-9-20. In
fact, if a defendant does not testify, the judge will instruct the jury that they cannot hold that against the defendant. The defense attorney can also emphasize in closing argument that the jury cannot hold it against the defendant that he chose not to testify.
There is no requirement that the judge have an on- the-record discussion with a non-testifying defendant in order to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of that right.” State v. Nejad, 286 Ga. 695 (2010); Sanford v. State, 287 Ga. 351 (2010). However, the better practice is to make an inquiry. Nevertheless, if the judge does make an inquiry and the defense attorney indicates the defendant is not ready to make a decision, the judge should not press the defendant for an answer. Wilmott v. State, 326 Ga. App. 1 (2014).
If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, the defendant may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness. O.C.G.A. § 24-9-20; O.C.G.A. § 24-5-506(b). Dunham v. State, 315 Ga. App. 901 (2012).
"A jury has unlimited discretion to accept or reject a defendant's testimony as a whole, or to accept it in part and reject it in part.” Futch v. State, 314 Ga. App 294 (2012); Almmodor v. State, 289 Ga. 494 (2011).
The defendant cannot present evidence of himself without testifying. For example, a defendant cannot show tattoos or the absence of tattoos through another witness without taking the stand because such exhibitions deprive the State of the right to cross-examine him about the tattoos. Jefferson v. State, 312 Ga. App. 842 (2011); Wesley v. State, 228 Ga. App. 342 (1997); State v. Battaglia, 221 Ga.
App. 283 (1996).
The Fifth Amendment privilege against self- incrimination protects only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. It does not prohibit the taking of a defendant's blood. Bowling v. State, 289 Ga. 881 (2011); Schmpter v. California, 384 U.S. 757 (1966).
The right to testify on one's own behalf is a fundamental constitutional right, but that right is not without limitation. Restriction on a defendant's right to testify may not be arbitrary. A requirement that a defendant exercise his right to testify before the evidence is closed does not violate a defendant's rights. Danenberg v. State, 291 Ga. 439 (2012).
The defendant cannot choose not to testify at trial then claim on appeal that the State would have been allowed to use improper convictions to impeach him. Warbington v. State, 316 Ga. App. 614 (2012); Linares v. State, 266 Ga. 812 (1996). The defendant does not have to testify before his other witness. Brooks v. Tennessee, 406 Ga. 605 (1972).
The defendant can be prohibited from introducing evidence for which the foundation has not been laid, even if the foundation can only be laid through the defendant's testimony. This does not violate the defendant's right against self- incrimination. Humphrey v. Riley, 291 Ga. 534 (2012).