My colleague Emmanuel Tipon in his article “Imelda, Guiliani, Spence and ineffective counsel" wrote about the crucial question whether to allow the client (the defendant) to testify. All criminal defense attorneys are confronted with the dilemma of whether to put the client on the witness stand. The client has the last say in this decision, but should be guided by your advice. Easier said than done—some clients proclaim their innocence and duly believes that he or she is the best witness towards achieving an acquittal.
But some points of advice before the client decides to bury his case. The client with his attorney should balance the pros and cons of testifying. While a client may think he will be able to deflect the piercing cross-examination of an experienced prosecutor--most will not. Having been a prosecutor for many years, you are not privy to knowing whether the defendant will testify until the judge turns to the defense to inquire if they want to call any witness. When the defense attorney states, “yes, your honor, my client." I could not sustain my excitement to finally cross-examine this individual, especially if he/she made no prior statements to the police. Finally, I would get a “piece of him or her."
The Fifth Amendment of the United States Constitution provides every criminal defendant the right not to testify. A jury instruction is read in every trial that informs the jurors that they cannot assume anything negative if the defendant decides to keep quiet. Here are some excellent reasons why a defendant should remain silent:
- If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out. Evidence of a previous crime may cause some jurors to conclude that this defendant is guilty of the current crime and a propensity to lead a criminal life. 2. If the defendant testifies, the prosecutor may be able to bring out information that discredits the character and reputation of the defendant for truthfulness, thus impeaching him. 3. Some defendants have a poor demeanor when speaking in public. A jury may not believe a defendant, who, though telling the truth, is a nervous witness and makes a bad impression. I always tell my clients, jurors are human so if they feel they can not trust you, they will stop listening to you and hence convict you. Yes, jury trials are at times, a personality contest. 4. The defendant may have a perfectly good story that would nevertheless sound unbelievable or “fishy" to a juror.
You, as the client also have to keep in mind that however well-prepared or coached you were by your attorney(s), you will not be provided with the questions that the prosecutor will be allowed to ask. So in essence, you are sitting on the “hot seat" with 14 jurors (12 including 2 alternates) and the judge watching your every move and absorbing everything coming out of your mouth. I have conducted numerous jury trials and I have seen first hand how the jurors perk up, pick up the pencil to take notes, listen and watch the defendant more than any other witness that comes before him/her or after him/her. With such intense scrutiny, your decision to not remain silent and let your attorney do the work must clearly outweigh the detrimental effect it could have in your case.
As a criminal defense attorney, I am of the belief that except for some very limited and exceptional circumstances (none to date), do I believe in putting my client on the stand. There are two things that as a defense attorney you already have in your cards even before anyone testifies in a criminal jury trial: the presumption of innocence of the defendant and the highest standard of proof which is beyond the reasonable doubt that must be climbed successfully by the prosecution.
Having been on the other side as a prosecutor in some of the busiest courts in Los Angeles County, it is “icing" on the cake when the defendant testifies. I always wondered why the defendant do not keep their mouth shut—some due to arrogance and some truly believe that by testifying they will salvage their case. Here are some examples of why attorneys do put their client on the stand:
- The prosecution has established ALL of the elements of the crime beyond a reasonable doubt. 2. The defendant’s testimony should SIGNIFICANTLY ALTER the probable outcome of the case against him/her. 3. The defendant is prepared for direct and cross examinations. 4. There are no other witnesses that could testify on the matters that the defendant wishes to testify about.
Even with a direct witness pointing at the defendant as the one holding the gun or with clear DNA evidence that the defendant was the murderer (remember, O.J. Simpson), the idea that you are 100% certain that the prosecution has proven its case is unheard of. Some defendants are better coached from the sidelines. By that I mean, I always reiterate with my clients that the jurors are always watching them, in and out, of the courtroom so they should always be in their best behavior.
As for being prepared for cross-examination, you can only try. When I was a prosecutor and now as a criminal defense attorney, I always advice my witnesses the following:
- Keep your answers short and simple. If you can answer by simply stating “yes" or “no"—do so. 2. If you do not know the question being asked. Do not be afraid to state to the attorney, “I don’t understand your question" and let the attorney do the work in asking clear and concise questions. 3. Do not guess at your answers for fear that you have to answer. If you don’t know, say, “you don’t know." If you don’t remember, say, “you don’t remember."
These 3 short tips have worked wonders. You can never prepare your witnesses to be able to foresee all the questions asked but if they keep in mind that it is the attorney’s job to ask the right questions, they will remain calm on the stand. It is undoubtedly one of the crucial questions that a criminal defense attorney will have to decide with his/her client. But as Mr. Tipon in his article, pointed out that Imelda’s attorney’s decided against her testifying because “she would not have a been a good witness. She talks too much. We would not be able to stop her." This is not a rare characteristic amongst defendants. Most believe if they can just explain it away, they will be acquitted but once they get started –there is no stopping them and at that point, the client just possibly “tanked" his/her case.