222.3Defendant's Rights in the Courtroom

Right to Confront, Testify, Allocute
Last Updated: 10/24/18

Key Concepts

  • The defendant has a due process right to confront the witnesses against him, based on both the state and federal constitutions, but this right may be waived.
  • The defendant also has the right to testify or not testify – the court may not attempt to improperly discourage the defendant from testifying, nor may the defendant’s silence be used against him if decides not to testify.
  • Defendants in all misdemeanor and non-capital cases have a waivable statutory right to allocute – that is, to make a statement to the court prior to pronouncement of sentence.

Right to Confront Witnesses

Practice Pointer

Confrontation Clause
This entry only addresses the defendant’s basic rights to appear in court and confront the witnesses against him or her. For a more in-depth discussion of confrontation issues under the Crawford v. Washington line of cases, see the related entry on Expert Testimony – Crawford, Substitute Analysts, and Remote Testimony. For additional analysis of Crawford and confrontation issues which may arise in cases involving child victims (including remote testimony and the use of non-testimonial statements), see Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses,” Administration of Justice Bulletin, Jessica Smith, December 2008.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to confront the witnesses against him or her. See Crawford v. Washington, 541 U.S. 36 (2004); California v. Green, 399 U.S. 149 (1970). A criminal defendant is provided two types of protection under the Confrontation Clause: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987); see also Davis v. Alaska, 415 U.S. 308 (1974). In addition, Article I, section 23 of the N.C. Constitution has a guarantee of the right to confrontation similar to that set out in the Sixth Amendment. See State v. Chandler, 324 N.C. 172 (1989). It also guarantees the defendant a fair opportunity to prepare and present his or her defense. See State v. Hackney, 240 N.C. 230 (1954) The North Carolina Supreme Court “has generally construed the right to confrontation under our state constitution consistent with the federal provision.” State v. Fowler, 353 N.C. 599 (2001).  The court “has repeatedly held that the right to confront is an affirmance of the rule of the common law that in criminal trials by jury the witness must not only be present, but must be subject to cross-examination under oath.” State v. Perry, 210 N.C. 796 (1936)

The right to be confronted by witnesses may be waived, even in a capital case, by the defendant either by express consent or by a failure to assert the right in apt time. State v. Braswell, 312 N.C. 553 (1985); State v. Moore, 275 N.C. 198 (1969); see also State v. Craven, 312 N.C. 580 (1985) (by failing to request that a witness be recalled, defendant waived his right to confront her about written note entered into evidence by the state after the witness had testified and left the courthouse). This right may be waived by the defendant or by defense counsel acting on behalf of the defendant. See State v. Splawn, 23 N.C. App. 14 (1974) (right to confront waived by defense counsel’s stipulation in open court that the SBI chemist’s testimony could be taken, both on direct and cross-examination, on the day preceding the trial and then read to the jury at the trial by the court reporter).

The denial of a defendant’s right to confront the witnesses against him or her is subject to harmless error analysis. See State v. Braswell, 312 N.C. 553 (1985). If the defendant’s constitutional right to confrontation is violated, the state bears the burden of showing that the error was harmless beyond a reasonable doubt. See State v. Morgan, 359 N.C. 131 (2004)

Right to Testify

The defendant also has a constitutional right to take the witness stand and to testify in his or her own defense. This right is now accepted to be an inherent part of the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment. See Rock v. Arkansas, 483 U.S. 44 (1987); State v. Colson, 186 N.C. App. 281 (2007).  Of course, the defendant’s right to choose to testify does not mean the defendant may be compelled to testify in violation of the Fifth Amendment. See also G.S. 8-54, which provides that a criminal defendant is “at his own request, but not otherwise, a competent witness.” If a defendant does decide to testify, he or she will be treated the same as any other witness and thereby subjects himself or herself “‘to all the disadvantages of that position.’” State v. Auston, 223 N.C. 203, 205 (1943) (citations omitted). This means the defendant is subject to cross-examination and impeachment, just like any other witness. See Id.; State v. Weaver, 3 N.C. App. 439 (1969); see also G.S. 8-54 (Defendant competent but not compelled to testify). 

“[T]he decision whether to testify is a substantial right belonging to the defendant.” State v. Luker, 65 N.C. App. 644 (1983), aff’d in part, rev’d in part on other grounds, 311 N.C. 301 (1984) (counsel can advise defendant not to testify, but the ultimate decision belongs to the defendant). If the defendant chooses to testify, the trial judge is not required to instruct the jury, on request or otherwise, that the defendant cannot be compelled to testify. State v. Walden, 311 N.C. 667 (1984).

A defendant may waive the constitutional right to testify as long as the waiver is knowing and voluntary. State v. Luker, 65 N.C. App. 644 (1983), aff’d in part, rev’d in part on other grounds, 311 N.C. 301 (1984). Unlike other waivers of constitutional rights, however, the trial judge is not required to inform a defendant of his or her right to testify or to make an inquiry on the record to determine whether his or her waiver is knowing and voluntary. State v. Carroll, 356 N.C. 526 (2002); see also State v. Hayes, 314 N.C. 460 (1985) (finding no denial of the right to testify because defendant did not indicate to the judge that he wished to testify).

  1. “Chilling” the Defendant’s Decision to Testify

The trial judge should not, by statements, rulings, or conduct, impermissibly “chill” (that is, influence and deter) the defendant’s right to testify. See State v. Barber, 120 N.C. App. 505 (1995); State v. Lamb, 321 N.C. 633 (1988). Correctly advising the defendant about the consequences of testifying is not an impermissible chilling of the defendant’s right to testify. See State v. Davis, 349 N.C. 1 (1998) (no error where trial judge did not attempt to give the defendant detailed instruction on the scope of cross-examination, and defendant had discussed the consequences of testifying with his attorneys); State v. Davis, 353 N.C. 1 (2000) (no error by failure to give more detailed instructions to defendant about cross-examination; instructions were not inaccurate). But see State v. Autry, 321 N.C. 392 (1988) (error found where trial judge gave a defendant an incorrect explanation about the scope of cross-examination to which the defendant could have been subjected).

  1. Commenting on the Exercise of the Right Not to Testify

Prosecutors are strictly prohibited from arguing that a defendant’s decision not to testify is evidence of guilt -- failure to abide by this rule may result in a mistrial or reversal on appeal. See State v. Reid, 334 N.C. 551 (1993); see also Baxter v. Palmigiano, 425 U.S. 308 (1976); State v. Baymon, 336 N.C. 748 (1994); State v. Reid, 334 N.C. 551 (1993). Judges likewise may not comment on the defendant’s failure to testify except, if requested by the defendant, to instruct the jury on the defendant’s right not to testify. Defense counsel is permitted to generally refer to the defendant’s right not to testify in closing argument by reading the Fifth Amendment and G.S. 8-54, or using words to that effect to paraphrase that right.  See State v. Banks, 322 N.C. 753 (1988); State v. Bovender, 233 N.C. 683 (1951). Defense counsel is permitted to inquire of jurors during jury selection about their ability to follow the law, including the laws on the defendant’s right not to testify and not holding that decision against the defendant. See State v. Blankenship, 337 N.C. 543 (1994). However, defense counsel is not allowed to further comment on or explain why the defendant did not testify. See State v. Bovender, 233 N.C. 683 (1951) (so holding because permitting extended comment by defense counsel “would open the door for the prosecution and create a situation the statute was intended to prevent”).

For more information about commenting on the defendant’s silence during jury arguments, see the related entry on Closing Arguments – Impermissible Content and Jury Argument: Content of Opening and Closing Statements,” North Carolina Superior Court Judges’ Benchbook, Jessica Smith, April 2012.

  3. Jury Instruction on Defendant’s Decision Not to Testify

If the defendant requests an instruction on his or her decision not to testify, the trial judge is required to give one. See Carter v. Kentucky, 450 U.S. 288 (1981); State v. Sanders, 288 N.C. 285 (1975) (there is no mandatory formula for instructing the jury on a defendant’s decision not to testify, but an instruction is sufficient if it makes clear to the jury that the defendant has the right to offer or to refrain from offering evidence as he or she sees fit and that the failure to testify should not raise any adverse inference).  Absent a request, it is discretionary with the trial judge whether to instruct the jury on the defendant’s decision not to testify. Some appellate decisions have held that it is the “better practice” for a judge not to give such an instruction unless it is requested by the defendant, see State v. Barbour, 278 N.C. 449 (1971); State v. Powell, 11 N.C. App. 465 (1971), but the United States Supreme Court has held that the giving of a “no-inference” instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination. See Lakeside v. Oregon, 435 U.S. 333 (1978).

Right to Allocution

The purpose of allocution is “to afford defendant an opportunity to state any further information which the trial court might consider when determining the sentence to be imposed.” See State v. Rankins, 133 N.C. App. 607 (1999). North Carolina’s appellate courts have held that the defendant does not have a due process right to allocute if the court declines to provide the opportunity, although there is some authority from other jurisdictions which challenges this holding. Compare State v. Moseley, 338 N.C. 1 (1994) (“defendant does not have a constitutional, statutory, or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding”); State v. Green, 336 N.C. 142 (1994) (no constitutional right to allocution in capital sentencing); United States v. Li, 115 F.3d 125 (2d Cir. 1997) (the right to allocution “is a matter of criminal procedure and not a constitutional right”), with Ashe v. North Carolina, 586 F.2d 334 (4th Cir. 1978) (“[W]hen a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant the defendant’s request”).

Even if due process does not require it, the defendant does have a statutory right to “make a statement in his own behalf” at the sentencing hearing for all misdemeanor and non-capital felony cases. See G.S. 15A-1334(b); State v. Miller, 137 N.C. App. 450 (2000). The defendant must request the opportunity to speak before the pronouncement of sentence or the right is lost. See State v. Rankins, 133 N.C. App. 607 (1999) (defendant was properly denied the opportunity to address the court where the request came after the jury had returned its verdict and the trial judge had already imposed sentence). Neither the constitution nor G.S. 15A-1334 requires the trial judge to address the defendant personally and ask whether or not he or she wishes to make such a statement. See Hill v. United States, 368 U.S. 424 (1962); State v. Poole, 305 N.C. 308 (1982). However, if the defendant does request an opportunity to address the court before being sentenced and he or she is denied the right to allocute under G.S. 15A-1334(b), a new sentencing hearing must be ordered. See State v. Miller, 137 N.C. App. 450 (2000)

As noted above, the defendant in a capital case is excluded from the statute authorizing allocutions. See State v. Moseley, 338 N.C. 1 (1994); State v. Green, 336 N.C. 142 (1994) (only remnant of the common law right of allocution in capital cases in North Carolina “is the right to present strictly legal arguments to the presiding judge as to why no judgment should be entered.”). The statute applicable to capital sentencing proceedings, G.S. 15A-2000(a)(4), has no provision for a defendant to make an unsworn statement of fact or to testify without being subject to cross-examination. It merely provides that a defendant or defense counsel has the right to “present argument for or against sentence of death.” See State v. Ray, 137 N.C. App. 326 (2000).  Despite the lack of statutory authorization, the trial judge might be willing to grant a defendant’s request to make such a statement anyway. See, e.g., State v. Moseley, 338 N.C. 1 (1994) (trial court indicated its willingness to permit allocution, although it did not actually occur in this case since defendant failed to renew his request at the appropriate time).

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume 2, Chapter 21.