RUMPOLE'S SEVENTH RULE OF DEFENSE

TROPICAL STORM BATTERS MIAMI! WIND AND RAIN SEND RESIDENTS SCURRYING FOR SHELTER. CHANNEL 7 IN HYSTERICS!

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.

BREAKING NEWS: BECAUSE OF THE TROPICAL STORM THAT IS PASSING BY THE KEYS AND INTO THE GULF, ALL COURTS IN MONORE COUNTY WILL BE CLOSED SATURDAY. The bars will remain open as long as possible.

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.