When analyzing the issue of whether a defendant in a self-defense criminal case should testify, two major concerns should be considered. The first concern deals solely with the factual and legal issues presented by the case, without regard to issues relating to the particular defendant; the second concern relates to issues involving the particular defendant.

The analysis that follows assumes a hypothetical case in which the evidence is likely to show that a criminal defendant acted lawfully, in self defense, and that the defense team reasonably believes the defendant should (if everything goes well at trial) be found not guilty.

​Conventional criminal defense “wisdom” is for attorneys to counsel their clients to not testify at trial. The primary reason for this is because the U.S. Constitution protects the right of criminal defendants to not be compelled to be a witness against themselves, which has been held to include a prohibition against prosecutors bringing to the jury’s attention that the defendant exercised his right to not testify at trial. This strategy forces prosecutors to “prove their cases” in order to obtain criminal convictions.

Criminal defendants in self-defense cases have exactly the same constitutional rights – including the right against self-incrimination – as do defendants in non-self-defense cases.
The substantive plea that a defendant enters at the outset of every criminal case is always the same: “Guilty” or “Not Guilty.”

A plea of “Not Guilty” can mean many different things, most of which do not apply to self-defense cases.

A “Not Guilty” plea can mean the defendant is claiming:

​To obtain a conviction, the government – in every criminal prosecution – bears both the burden to prove the defendant’s guilt beyond a reasonable doubt and the burden to present evidence.

In every criminal case, the government is the first party to present evidence. For example, in a hypothetical murder case, the government would likely present evidence that the defendant was armed and that the defendant shot and killed the decedent (e.g., “victim”). The defense, during cross-examination of government witnesses (both lay witnesses and expert witnesses), might challenge the government’s evidence by, for example, trying to show that witnesses for the prosecution are not credible or that the physical evidence offered by the prosecution isn’t reliable or simply doesn’t prove what the prosecution would like it to prove, thus creating reasonable doubt as to the defendant’s guilt.

After the government has finished presenting its case, the defendant is given an opportunity to present his defense. In non-self-defense cases, such evidence might include calling defense witnesses (both lay witnesses and expert witnesses) whose testimony (further) brings into question the reliability of, or directly contradicts, the evidence that was offered by the prosecution. Just as the defense had an opportunity to cross-examine the prosecution’s witnesses, so too, the prosecution is given an opportunity to cross-examine defense witnesses.

Up to this point, trial procedure for non-self-defense and self-defense cases is identical.

But now, procedurally, things change. The defendant in our hypothetical murder case, by alleging the affirmative defense of self defense has, by definition, admitted that he used a firearm to shoot and kill the decedent (e.g., “victim”).

Because the self-defense defendant, as compared to the government, has superior access to evidence relating to self defense (e.g., defendant’s potential testimony), the burden to produce evidence on the issue of self defense – but not the burden to prove innocence – shifts from the government to the defense.

The government, in the presentation of its case, might very well have (inadvertently) offered evidence that the defendant acted in self defense. However, in the abstract, it is much more probable that the defendant will be better situated to offer evidence of self defense. The best form of such evidence is often the defendant’s testimony.

After the defendant produces evidence of self defense, the burden to produce evidence then shifts back to the government, requiring the government to negate, if it can, any reasonable doubt as to whether the defendant acted in self defense.

What constitutes appropriate or sufficient evidence of self defense will be determined by the law of the jurisdiction (e.g., state) in which the defendant is being tried.

Thus, we see that, unlike in non-self-defense cases, where the default position is that defendants do not testify, the default position in self defense cases is that such defendants do testify.

One of the major considerations in deciding whether a self-defense defendant should testify is whether the defendant is capable of giving persuasive testimony.

Giving persuasive testimony is a skill, like many other skills. It requires, of course, the ability to give truthful testimony; however, not all truthful testimony is persuasive.

The ability to give persuasive testimony does not mean a person must be highly educated. Police officers, many of whom have little or no college education, often give highly persuasive testimony. Almost all police officers have received at least some training to develop their skills as a witness.

Some highly educated, knowledgeable, and degreed individuals, on the other hand, lack the skills needed to give persuasive testimony. This, however, does not describe the expert witnesses whom the government can be expected to call in support of their case. Such witnesses are almost always quite skilled in giving persuasive testimony.

A self-defense defendant’s defense team will likely try to prepare the defendant to testify. Such preparation is intended to prepare the defendant to give truthful, persuasive testimony. It is not intended, as the saying goes, to prepare the defendant to “Test-A-Lie” (as opposed to “testify”).

Some people possess a greater innate ability to provide persuasive testimony, as compared to others. Nevertheless, the ability to develop a degree of skill which enables one to give persuasive testimony is easily within the capability of most people.

​Another consideration relates to the issue of “bad” or “collateral” facts and whether, as mentioned above, the self-defense defendant can give truthful, persuasive testimony which is reasonably likely to mitigate or overcome these facts.

Such “bad” or “collateral” facts might include:

1. Modifications to the firearm that was used in the self-defense incident;
   
   
2. Evidence that the defendant has what might reasonably be perceived as an anger management problem;
   
   
3. Controversial pre-incident statements made by the defendant (e.g., social media posts, etc.);
   
   
4. Controversial slogans on the defendant’s clothing, bumper stickers, etc.

​The government can be expected to attempt to exploit anything it can in its attempt to paint a self-defense defendant as some type of gun nut, reckless person who was looking for an excuse to shoot someone, or the like. A prudent person who carries a firearm for self defense will, through their everyday conduct, consciously refrain from supplying the government with this type of inflammatory, albeit questionably relevant, evidence.

​The general “rule” is that most (non-self-defense) criminal defendants should probably not testify at trial. In self-defense cases, on the other hand, the general “rule” is that most defendants probably should testify at trial, as such defendants are likely the only source of certain evidentiary facts.

Nevertheless, general rules are just that. Both the facts and people involved in each case are different from every other such case. Accordingly, whether a defendant should testify in any particular criminal case is a decision that must be made on a case-by-case basis.

​When a person seeks to purchase a firearm from a federally-licensed firearms dealer (FFL), the FFL is required by federal law to obtain government approval for the transaction prior to transferring possession of the firearm to the buyer.

The federally-mandated government approval process begins with the buyer completing a “Firearms Transaction Record,” also known as an “ATF Form 4473,” or simply a “4473.”  After the buyer completes the 4473, the FFL verifies the buyer’s eligibility to receive the purchased firearm.

In Texas, this verification may be accomplished in one of two ways:  If the buyer possesses a valid License to Carry (LTC) a Handgun, the FFL need do nothing more than photocopy the buyer’s LTC.  If the buyer does not possess a valid LTC, the FFL initiates a telephone inquiry with law enforcement.  Law enforcement officials then attempt to verify the buyer’s eligibility to receive the purchased firearm through database which is setup specifically for this purpose.

The vast majority of 4473s are approved immediately and the FFL is then authorized to transfer possession of the purchased firearm to the buyer.

Of those 4473s which are not approved immediately, some are denied immediately and others are neither immediately approved or immediately denied.  Federal law provides that when a 4473 is delayed, that is, not immediately approved or immediately denied, a FFL may, but is not required to, transfer the purchased firearm to the buyer if the FFL does not receive a denial notification within 72 hours.

There are many possible reasons why a 4473 might erroneously be denied or not immediately approved.  One common reason is that incorrect information was reported to law enforcement and has thus become included in the purchaser’s criminal history record.

The solution to this type of problem is to ascertain what specific entry (or entries) in a person’s criminal history record are causing the 4473 delay or denial; determine whether that entry (or entries) is erroneous; and if an entry (or entries) is erroneous, take the appropriate steps to have the erroneous entry (or entries) corrected.