If you have ever been involved in or watched a Criminal Preliminary Hearing — afterwards you might have wondered why the defendant didn’t take the stand. The reason that the defendant rarely, if ever, takes the stand is because of the legal rules of a preliminary hearing. Since credibility is not assessed, the judge has to assume — for purpose of the preliminary hearing only — that the witness is telling the truth. And none of the evidence presented by the defense (or the Commonwealth or State for that matter) will change the legal affect of the witness’s testimony. Hence, since putting the defendant on the stand won’t make the witnesses testimony false it doesn’t do any good to put the defendant on the stand.
Not only can’t the defendant’s testimony help at a preliminary not help, it could hurt. Why? Well, now you a record of the defense’s theory of the case and his potential testimony at trial. Essentially, the Commonwealth now have the equivalency of a written statement by the defendant — something the defense always wants to avoid. (Why is beyond the scope of this article and I have a four minute video explaining why at the bottom left of my website, markdhauser.com.)