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Virginia Code

Va. Code Ann. § 19.2-268 (2026)

Right of accused to testify

✓ current as of May 2026
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In any case of felony or misdemeanor, the accused may be sworn and examined in his own behalf, and if so sworn and examined, he shall be deemed to have waived his privilege of not giving evidence against himself, and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by the prosecuting attorney.

Code 1950, § 19.1-264; 1960, c. 366; 1975, c. 495.

Notes of Decisions
Cited in 32 cases (6 in the last 5 years), 1976–2025 · leading case: Wells v. Commonwealth, 531 S.E.2d 16 (Va. Ct. App. 2000).
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Wells v. Commonwealth, 531 S.E.2d 16 (Va. Ct. App. 2000). · cites it 10× “; Code § 19.2-268. An accused has a right under the United States Constitution to testify in his or her own behalf.”
Quintana v. Commonwealth, 295 S.E.2d 643 (Va. 1982). · cites it 4× “If it is the defendant's blood, where is the evidence that the defendant was ever bleeding between the time he left Fairfax County Jail to the time the suit was recovered[?]" Defendant argues that these remarks constitute a comment on his failure to testify in violation of his…”
Pilot Freight Carriers, Inc. v. Reeves, 339 S.E.2d 570 (Va. Ct. App. 1986). · cites it 2× “Virginia codifies this right in Code § 19.2-268. In his sworn pleading petitioner states: “I want[ed] to tell my side of the story,” but “[m]y lawyer didn’t let me testify in my behalf.”
Powell v. Commonwealth, 552 S.E.2d 344 (Va. 2001). · cites it 2× “As a general rule, any comment that the Commonwealth’s Attorney made referring to the defendant’s election not to testify is a violation of his right against self-incrimination as guaranteed by the Fifth Amendment of the United States Constitution, Griffin v.”
Blackman v. Commonwealth, 613 S.E.2d 460 (Va. Ct. App. 2005). · cites it 2× “Settled principles of subject-matter waiver explain why: It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”
Sadoski v. Commonwealth, 254 S.E.2d 100 (Va. 1979). · cites it 4× “Code § 19.2-268 (Repl. Vol. 1975) permits an accused to testify in his own behalf in any criminal proceeding, “subject to cross-examination as any other witness .”
State v. McAboy, 236 S.E.2d 431 (W. Va. 1977). · cites it 2× “§ 25-1211; N.J.Stat.Ann. §§ 2A:81-11, -12 (West); N.”
Dunn v. Commonwealth, 284 S.E.2d 807 (Va. 1981). · cites it 6× “He has a constitutional right to remain silent and that’s a very important principle for you to keep in mind, that the failure to testify is not to be considered by you as bearing upon the appropriate verdict in this case. You must base your verdict upon evidence other than that…”
Hackney v. Commonwealth, 504 S.E.2d 385 (Va. Ct. App. 1998). · cites it 2× “Evidence of other crimes or convictions may be admitted for the purpose of, among other things, impeaching the credibility of a witness, including a criminal defendant, see Code §§ 19.”
Hines v. Commonwealth, 234 S.E.2d 262 (Va. 1977). · cites it 2× “” Virginia Code § 19.2-268, which affords an accused the opportunity to testify or not, as his interests dictate, also provides that “his failure to testify shall create no presumption against him, nor be the subject of any comment before the court *907 or jury by the…”
Lincoln v. Commonwealth, 228 S.E.2d 688 (Va. 1976). · cites it 2× “Now, he put on many character witnesses to testify for the defendant, [but] not one witness to deny anything the Showalters said, Armistead said, Spradlin said and then he went on to compare the seriousness of gambling with armed robbery ...” The defendant argues that this…”
Hazel v. Commonwealth, 524 S.E.2d 134 (Va. Ct. App. 2000). · cites it 4× “2d 37 (1987) (citation omitted), guaranteed by the Fifth Amendment of the United States Constitution and Article 1, Section 8 of the Virginia Constitution, and as further codified in Code § 19.2-268. See Johnson v. Commonwealth, 236 Va.”
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