Brooks v. Tennessee, 406 U.S. 605 (1972)

In Brooks, the Supreme Court struck down a state statute requiring criminal defendants to testify, if at all, before any other defense witnesses take the stand. The Court concluded that such statutes violate both the Fifth Amendment self-incrimination clause and the right to counsel.

At the close of the prosecution’s case in his robbery trial, Brooks’s attorney requested that Brooks be allowed to testify after the other defense witnesses. Relying on a Tennessee statute requiring the defendant to testify at the beginning of the defense case or not at all, the judge refused the request. Brooks then elected to not testify, and he was convicted.

The U.S. Supreme Court reversed Brooks’s conviction by vote of six to three. The Court acknowledged that the statute was intended to prevent defendants from adjusting their testimony to fit with testimony given by other defense witnesses. However, the Court held that the statute unjustifiably burdened Brooks’s right not to testify because it forced him to decide whether to testify before he knew if his testimony would be necessary or helpful to his case. The Court also concluded that the statute violated Brooks’s right to the effective assistance of counsel because it prevented his attorney from exercising his professional judgment as to the best time to call his client to testify.

Brooks thus holds that states may not erect arbitrary barriers that frustrate a criminal defendant’s exercise of his right to testify or interfere with his attorney’s ability to effectively represent him.

DAVID A. MORAN

See also Right to Counsel; Self-Incrimination (V): Historical Background