Thursday, July 22, 2010



TRIVIA ANSWER: We forgot to answer that Joyce Cohen wore a black dress to court on the day she was convicted. Alan Ross for the defense with Bob Amsel and both were at their considerable finest during the defense; and an absolutely brilliant job for the prosecution by two of the very best trial attorneys the Miami SAO will ever see: (Now West Palm Beach Judge) John Kastrenakes and Kevin DiGregory. Not many of us who watched it will ever forget Kevin DiGregory sitting down during closing argument and remaining silent for the five minutes that was the time between when Joyce Cohen said she found her husband's body and when she called 911. He just sat there in silence for the full five minutes. It was a very powerful part of the closing argument.


Rumpole's 7th Rule of Defense:
"Never ever tell the jury in voire dire or opening statement that your client will testify. Ever. No exceptions."

Our friend and colleague David O Markus, who knows one or two things about winning a jury trial for the defense vehemently disagrees with us. While we leave it to David to fully elucidate his theories, he believes that establishing credibility with a jury is paramount and that overrides our reasons for never revealing that your client will testify.

We feel there are two important reasons why you should never reveal that you client will testify:
(in order of importance)

1. All warfare is based on deception*. When you give the prosecution a few days or a few weeks notice that your client will be testifying, you are ensuring that they will be more prepared to cross examine your client. Trials are stressful events. There is always a lot to do. Creating uncertainty in the prosecutor on whether your client will testify creates an on going dilemma for prosecutors- when the trial ends for the day how much time (if any) do they devote to making notes on the testimony of the day to cross examine your client on? With so much to do, and without knowing whether your client will testify, you are increasing the odds that they will not be as prepared when your client testifies then if you had given them advance warning when the trial started.

Rumpole's seventh rule of defense interlocks with Rumpole's First Rule of Defense: Avoid Putting your client on the witness stand at all costs."

When your client testifies, all rules of reasonable doubt go out the window. Regardless of how weak the prosecution's case is, the jury mostly decides the case based on how believable your client was on the stand. Most defendants (not all) will not do a great job on the witness stand no matter how well you prep them. So when deciding whether to take a case trial, a paramount decision is "can you win the case without your client testifying?"

If you decide your client will testify, then you still maintain an advantage by keeping the prosecution in the dark.

All warfare is based on deception. Hence, when able to attack you must seem unable.
When using forces, you must seem inactive; when near, make the enemy believe you are far away; when far away, make him believe you are near.

Hold out baits to entice the enemy. Feign disorder,
and crush him. *

2. Trials are unpredictable. As we currently see in the Blogo trial in Chi-town, many unsuspected things can occur during the trial. What seemed a probable occurrence six weeks ago in voire dire, may look entirely different after the prosecution rests.

The credibility you gain in promising the jury that your client will testify is not worth the credibility you lose when you don't put your client on the stand after promising to do so.

If he is in superior strength, evade him.

If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.

If he is taking his ease, give him no rest.
If his forces are united, separate them.

Attack him where he is unprepared, appear where
you are not expected.

These military devices, leading to victory,
must not be divulged beforehand." *

In the final analysis, when you tell the jury in opening your client will testify three bad things can happen: 1- the prosecution will be more prepared for cross; 2-the foundation of the case will unexpectedly shift and you will lose credibility when your client doesn't testify; 3- your client will testify and do a bad job.
One good thing can happen: You buy some credibility with the jury.

When you practice deception and not reveal your strategy two good things can occur: 1- the prosecution will be unprepared (or certainly less prepared) when your client does testify; 2- If the foundation of the trial changes, you will not be in the position of explaining in closing why you went back on your word.
There are no negative consequences with not telling the jury at the beginning of the case that your client will testify.

In our opinion, the risk/reward analysis comes squarely out on the side of never ever telling the jury at the beginning of the case that your client will testify.

See you in court, not saying nuttin about whether our client will testify.

** Sun Tzu, The Art of War.


Anonymous said...

But see United States v. Ali Shaygan, the Judge Gold case where Markus promised his client would testify, he did testify, and then walked on 150 counts.

Anonymous said...

Rump--Have to agree strongly with both of your rules. Exception to Rule #1 is when it is a he said/she said case and your client has to take the stand to establish the possiblity of reasonable doubt. I have done this four times in my career as a defense attorney and have walked away with 3 NGs and a hung jury followed by a very reasonable plea offer.

For openings, the less the defense says the better. If you promise anything during the opening other than that the State cannot prove their case, you are opening the door for the jury to look to the defense to prove something. I know this runs counter to the thinking that the opening is the second most important part of your case (voir dire and jury selection being the most important by far), but in a criminal case the State has a very high burden. Keeping the jury's focus on that burden is a key part in getting that NG, or in some cases a lesser.

Bruce Fleisher must also be addressed. In my experience he has never been afraid to take on the toughest cases, always fights like hell for his clients and generally does a very good job.

Anonymous said...

I apply the same rules of war listed in the post along with a few other ones. Not because I've read the Art of War book, but because I've learned them through experience.

Anonymous said...

I agree with Rumpole.

I always tell my clients at the close of the State's case:

At this point they are judging the State's evidence. The minute you take the stand, they will judge you. At that point, it becomes the State's witnesses credibility versus your client's credibility.

Anonymous said...


Your client should have never been charged. The undercover cop came into your clients office and complained of back pain and then your client was given pain meds. Next time, don't commit to your client testifying. Its bad practice.

Anonymous said...

I always tell myself- dont worry about the prospect of a trial and a defendant testifying, why?- the Defense bar goes to trial about 3% of the time, loses about 89% of the time, and is rule 3 quality better then 90% of the time. The best part is, of the 3% of trials, about 4 defense lawyers try 80% of them- the rest are a bunch of money mill hacks-

Anonymous said...


How much time do you spend in voir dire talking about a defendant's right NOT to testify and the State's burden of proof?

the trialmaster said...

the TRIALMASTER, winner of hundreds of trials totally agrees with the Rumpster. It is not even a close question.

Anonymous said...

I agree with rule number one. How many of us have seen a defendant take the stand, get caught in one untruth and snatch defeat from the jaws of victory? I don't care how smart, how eloquent or prepared a defendant is, you put your client on only when you have nothing else.

Anonymous said...

Look at it this way. Instead of a trial, you will ask six people to judge whether or not a piece of apple pie sitting in front of them tastes good and will taste good beyond a reasonable doubt. The problem is they cannot taste it but must reach a conclusion based only on your persuasive ability. Not an easy job since there is a built in doubt. Now, in addition to arguing, you let them taste it. That bite represents the Defendant testifying. They must now decide if the remainder of the pie tastes good beyond a reasonable doubt and ignore that piece they already tasted if they do not like it. So what will a reasonable juror do? Right. Base the entire decision on whether or not they liked the first bite.

Rumpole said...

I spend more time talking about my client not testifying than I do the burden of proof. I think the jury inst covers reasonable doubt fairly well and I find I get a better insight into people by discussing how they will feel if my client doesn't testify.

I must strongly disagree with the comment about holding back in opening statement. Studies show people make up their mind fairly quickly and I use opening to go on the offense. I make strong statements that I know I can back up and I issue challenges to the prosecution to show things that I know they cannot prove.

The only thing I don't do is promise that my client will testify.

Anonymous said...

I agree. Once client testifies, the entire case is simple. DID HE/SHE TELL THE TRUTH?

There are exceptions. I have defended lots of cops and the jury expects a cop to testify. I have put on cops numerous times and always won because they had a reasonable explaination.

Probably the same for attorneys and politicians but, hell, most cops, lawyers and politicians know how to testify and how to bullshit.

Anonymous said...

I think David Markus might have a point in a federal trial because you do not have the same opportunity to develop credibility with the jury through voir dire as you do in state court.

Anonymous said...

Edward Bennett Williams used to say if a defendant doesn't take the stand, he might as well take his toothbrush to court on the last day and say 'goodbye.'

/do not know if he's right, just sayin'

Anonymous said...

When I was an ASA, I had no fear of a defendant wriggling his way out of a conviction by testifying. Now that I am a defense atty, I have virtually no confidence my client can wriggle his way out of a conviction by testifying. If I can't build reasonable doubt, then I doubt he can.

One time I told a baby C that I was so confident that my client would stand up to cross that I was going to leave the courtroom and have coffe at Au Bon Pain during the cross. Got diversion about a day later. Although that may have been just because the ASA wanted to go home early.

Rumpole said...

Different time; different cases. Cannot argue with the greatness of EBW- but in todays criminal courts, I strongly disagree with that philosophy.

CAPTAIN said...


I did not make this quote up .....

OMB Director Peter Orszag said today that the numbers represent a "fiscal situation that requires attention."

What was he speaking of ...?

WASHINGTON - New estimates from the White House on Friday predict the budget deficit will reach a record $1.47 trillion this year. The government is borrowing 41 cents of every dollar it spends.


Economists agree that the most important measure of the deficit is against the size of the economy. Opinions vary, but many economists say a deficit of 3 percent of gross domestic product is sustainable since it would stabilize the overall debt when measured relative to the economy.

The report put the deficit at 10 percent of GDP this year and 9.2 percent of GDP next year. It would never reach the 3 percent figure under Obama's predictions — which underestimate war costs and depend on assumptions of tax hikes that may not materialize.

OMB Director Peter Orszag said the numbers represent a "fiscal situation that requires attention."

The Captain says: "Oy vey"

Cap Out .....

CAPTAIN said...

Two other things:

If EBW was still around, the Orioles would still have a baseball team.

And, what happened to Bonnie? I'm still waiting for it to rain here?

Anonymous said...

The Art of War should be required reading for every attorney. I wish I heard about it earlier.


Anonymous said...

Unfortunetly when the client testifies IT DOES become all about the Defendant's testimony. I hate it when they take the stand. It all goes out of control then.
'Know only your enemy and you lose half the time. Know only your self and lose half the time. Know your enemy and your self and victory is assured.' The Art of War by Sun.
But DS says:when the dice are thrown and in the air its up to fate -

Anonymous said...

Ross sucked and as a result an innoncent woman was convicted and almost put in the chair. Trust me I was there. the other two co-def. never plead to the murder and it was to their advantage to do so . ask eddie O.

Anonymous said...

Rumple's Eight Rule of Defense - Never wear a mustache that went out of style in 1910.