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Sunday, March 29, 2015

THE DEFENSE CALLS….

The NY Times Magazine had a very informative article on the Colorado SuperMax prison and what solitary confinement does to an individual (it makes them go crazy). We strongly suggest you read it. 

The NY Times here also ponders the question of whether Dzhohkar Tsarnaev's attorneys will put him on the witness stand in the Boston Bomber trial? 

We have a new poll up. Lawyers are divided on this question of whether to put a client on the stand. Obviously, in federal court, the decision is more perilous because of the obstruction of justice enhancement. (For those of you who stay put in state court, as hard as it is to believe, the feds punish you even more for testifying and losing because they view it as an automatic proof of perjury). 

While we try to keep an open mind as we approach each trial, our view is that if we cannot be in a position to win with our cross of the prosecution witnesses and the use of defense witnesses, then we shouldn't be proceeding to trial. Put another way, we don't want a trial to rest on the testimony of our client. 

Putting a client on the witness stand changes the dynamic of the trial, mostly in favor of the prosecution. Our view is that no matter how weak the prosecution's case is, the jury will disregard the reasonable doubt instruction and focus on the defendant's testimony. A bad performance by the defendant can save the prosecution's case. A good performance by the defendant can weaken the prosecution's case. But it takes a stellar performance by the defendant to win a case, and most defendants don't have that in them. 

Yes, we know that you have to put the client on in a self defense case. This is not about those specialized cases. This is about your average criminal prosecution in Florida. 

We say the safer course is to handle the matter in voire dire. Get the jury to affirmatively buy in to the proposition that a client doesn't have to testify and they won't consider it if the client doesn't. Then, if the case is going well, keep the client safely seated next to you. 

What say you? 

See You In Court. 

8 comments:

Anonymous said...

keep the client off the stand at all costs. There are exceptions, however, In a federal case many years ago, a criminal defense lawyer, indicted for money laundering, and who will remain nameless, testified on his own behalf and was acquitted simply because he was more credible than the AUSA who brought the case to trial. Finding a glib defendant is a rarity.

the trialmaster said...

The trialmaster has won self defense cases and rape cases without the client getting near the witness stand, as well as money laundering with a VP of a major bank. Do not let the client ever testify if you can help it.

Anonymous said...

Can't be afraid to put a guy on in the right case. If a clients story makes more sense than the cops then do it. I never bought into this idea of "do anything to keep a defendant off the stand".

I've won cases by putting Defendant's on the stand with 4 and 8 prior felony convictions. Their stories made much more sense than the cops stories. Have to decide on a case by case basis.

ScottAfrica

Anonymous said...

When you have a client who is a cop, lawyer, judge or someone real important, yes, you can put him or her on the stand. Otherwise, the client will kill your case.

One big exception... when you MUST put on a defense that only the Defendant can do. Then, take client to empty courtroom and examine and cross examine him or her and get ready in advance.

Claude Erskine- Browne said...

Phil Davis took the stand and got a NG in Courtbroom

Anonymous said...

For every Defendant that has walked because of his/her testimony, at least 20 have shot themselves in the foot. As an ASA I once proved every element of my case through the Defendant.

There are some situations where you have no choice--self defense, he said/she said, etc. Otherwise, keep them off.

Anonymous said...

I hated crossing defendants as an asa. They can be so well prepared. If they are free of felony convictions and there are no statements by them....hardest cross in the world to do.

the trialmaster said...

In my experiences Lawyers and especilly judges make the worst witnesses.