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Can my sentence be increased if I testify on my own behalf and am convicted?


Unfortunately, in federal court, yes your sentence can be increased. There are many pitfalls to testifying at a criminal trial. The most obvious is that you subject yourself to cross-examination by the prosecutor. If the prosecutor does a good job and makes you look like your not telling the truth or that your version of events just doesn't make sense, you'll probably be convicted. And then, the prosecutor will argue you committed perjury on the witness stand. I have seen this happen as a Jacksonville criminal defense attorney. But if your version of events rings true and the prosecutor can't shake you, you'll probably carry the day. Jurors love hearing from the accused, even though they're instructed that if they don't they can't hold it against them.

Can you be punished more harshly if you decide to testify on your own behalf but are still found guilty by the jury? In federal court, you can, as per Section 3C1.1 of the Federal Sentencing Guidelines, which requires a two level enhancement (that's roughly an additional 7-9 months in prison) if the judge makes a finding that you lied when you testified. The trouble with this enhancement is that it may cause an accused to think twice before testifying. And prosecutors always make the argument that if someone testifies at his own trial and is convicted, he must have been lying (even though this is not always the case). It does not necessarily follow that just because someone is convicted by a jury, their testimony must have been false.

Consider U.S. v. Napolitan, decided by the 3rd. Circuit Court of Appeals on August 6, 2014. Napolitan was convicted of possessing more than 500 grams of cocaine. Police Officers were given permission by Napolitan's live-in girlfriend, Lisa, to search their apartment. A locked gun safe was located. A search warrant was obtained, the safe was opened by a locksmith and inside it were guns, cash and a kilo of cocaine. Napolitan chose to stand trial and testify in his own defense. He admitted ownership of the safe, the cash and the guns, but claimed the coke belonged to his girlfriend. He further claimed that she had a key to access the safe. He testified that she had specially purchased a master skeleton key directly from the manufacturer of the safe. Another defense witness also testified that he had seen Lisa open the safe with her own key. Lisa testified for the prosecution that she never had access to the safe and never went in the safe. The prosecutors 'belittled' Napolitan's claim that Lisa had her own key to the safe. The jury found Napolitan guilty.

The day before Napolitan was to be sentenced, Lisa called the prosecutor and told him that six to eight months before the drugs were discovered, she had in fact purchased a key to the safe from the manufacturer (perhaps her conscience got the better of her) . What's more, a police sergeant, who previously testified that he recovered only one key to the safe, changed his testimony; he now claimed that he had in fact recovered two keys. Incredibly, the prosecutors still asked the court to increase Napolitan's punishment, claiming that he committed perjury on the witness stand (naturally, because he was convicted).

The trial judge refused to increase Napolitan's punishment, stating that "I don't know that the record supports it, and I an concerned that it really has a chilling effect on a Defendant that provides a defense in the case, including taking the stand or putting witnesses on the stand" This was, of course, the right decision to make. However, the appeals court found that the trial judge cannot simply refuse to apply the enhancement for perjury and so sent the case back to the trial judge to make further factual findings on whether the enhancement should apply. Hopefully, the trial judge will stick to his guns, as the facts do support Napolitan's position that Lisa also had access to the safe and, as such, the cocaine could have belonged to her.

Lesson Learned:

In this case, the trial judge was right not to increase the Defendant's sentence; however, he should have ordered a new trial based on newly discovered evidence. And if the prosecutors had any guts or integrity, they would prosecute their own witnesses for making false statements (the true perjurers) rather than pressing the ridiculous claim that Napolitan's punishment should be increased. But this is what happens all too often when defendants take the witness stand and are convicted. Even here, where there is a credible view of the evidence that the defendant was telling the truth, and that the coke might have belonged to his girlfriend, prosecutors just can't help themselves: in their view, if the defendant was convicted, he must necessarily have lied on the witness stand. So, before you testify on your own behalf in federal court, know that if you're convicted, your sentence could be increased just because you decided to take the witness stand.

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