This week, we have discussed the endings of a few high-profile criminal trials. We discussed the New Jersey Rutgers Cyber-Bullying case, the Mattapan Massacre Murder case and a homicide retrial in Lawrence.

All three trials had something in common. The defendants did not testify.

The issue of a criminal defendant testifying is a much more complex one than you may think. Many people assume, “Well, if she has nothing to hide, why doesn’t she take the stand on her own behalf?” In fact, in most criminal trials, defendants do not testify. In all cases, juries are told that they cannot consider the reason such testimony never took place. They are also told that they cannot hold it against a criminal defendant that she did not testify.

Do juries consider it and hold it against the defendant anyway? You tell me.

Attorney Sam’s Take On Whether Defendants Should Take The Stand

After one of my jury trials as a young prosecutor in Brooklyn, I had an interesting experience., The jury found the defendant “not guilty” and then met the defense attorney and me outside the courtroom to discuss the case. This is, or at least was, allowed in New York. It is not allowed in Massachusetts.

The defendant had testified in his own defense. The jurors berated the defense attorney for letting him take the stand. They said that he was such a bad liar, they almost found him guilty. Instead, they overlooked it and acquitted him anyway.

They must have really disliked the prosecution’s case in that one. However, it underscores the fact that , very often, a testifying defendant can grab defeat out of the jaws of victory.

“You mean…if the defendant gets on the stand and lies, right?”

No. You must remember that the prosecutor, who has just sat through the defense attorney tearing into all his witnesses, is a trial lawyer as well. One would imagine he has some experience in cross-examination.

One of the truths we have often discussed in the Boston Criminal Lawyer Blog is that the idea that a prosecutor, particularly in trial, is simply looking for the truth is fantasy. The prosecutor wants to win the trial. Therefore, he will do everything possible to trip up the defendant and, if possible, anger the defendant to make that defendant seem unlikeable and not believable. Few criminal defendants are as training for the verbal combat as the prosecutor.

“Don’t you prepare the defendant before he goes on the stand?”

Sure. But taking the stand makes everybody nervous. Even after several years of conducting trials, I was nervous the last time I had to testify at trial. Nervous people make mistakes even if they are telling the truth. Sometimes words come out wrong. Sometimes they express themselves in an awkward way…even a way that can be easily misinterpreted.

“But you, as attorney, can object to the questions, right?”

Sure, if the question is objectionable under the rules of evidence. I can’t get up and yell, “Objection, judge, he is making my client look bad.”

As I have said in the past, I believe that it is neither evidence nor law that the jurors take into the deliberations with them to decide a case. It is their impressions of those things. These impressions range from mental pictures to feelings they had when they heard or saw the evidence. If the jury, regardless of what was said, remembers feeling that the defendant was a liar, that defendant is usually dead in the water.

That is, unless competing perceptions overtake that impression.

The prosecution has the burden of proof. The prosecutor must prove his case beyond a reasonable doubt. According to the law, the defendant must do nothing other than show up. Now, we know that that does not translate into reality very well. However, it is one of the reasons jurors are told to disregard if the defendant did not testify.

“Sam, are there other reasons a defendant might not want to testify?”

There sure are. Let’s discuss some of them…tomorrow.

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