The “presumption of innocence” is a legal theory that was created hundreds of years ago to ensure the rights of the criminally accused are protected. So why is it that people still think they have to “prove” their innocence? I have handled hundreds of jury trials, where one of the first instructions which the judge gives to the jury is the definition of the “presumption of innocence.” This is followed by the advisement that the jury MUST find the defendant NOT GUILTY unless they are satisfied that the Prosecution has proven the defendant’s guilt beyond a reasonable doubt, not the defendant proving his/her own innocence.

Usually, a defendant in a criminal trial has a crucial decision to make with their attorney: do I testify in my defense? Countless times, I have seen defendants snatch defeat from the jaws of victory by taking the stand in his/her own defense. As a rule, I would say this: if you are truly, unequivocally, 100% innocent, take the stand. If you are not truly, unequivocally, 100% innocent, do not testify. Why would you when you are not required to? Why would you testify if you are guilty? Jurors are not foolish. If they think you are lying to them, they will convict you. It’s that simple. An experienced criminal defense attorney can do his part to ensure that your constitutional right to remain silent is not held against you by a judge or jury.

The secret to an effective criminal defense attorney is their ability to convince a judge or jury that the trial is not so much a question of guilt or innocence, but forcing the prosecution to prove each element of their case beyond a reasonable doubt. When viewed within the proper framework, an effective defense lawyer can convince a jury to find his client not guilty, even if the jury does not think the client is innocent.

In conclusion, those who are accused of criminal offenses should have an honest, frank discussion with their attorney during their first meeting, and start having meaningful discussions with the attorney about their trial strategy and the decision to testify or not testify. The presumption of innocence and the 5th Amendment right to remain silent in one’s defense is the best weapon a criminal defendant has in his/her arsenal.