Much to our surprise, the jury in the Sean Taylor murder case did not reach a verdict Friday and deliberations will resume Monday. More on trial strategy below.
What is Rumpole Reading?
"Days Of Fire: Bush and Cheney In The White House". The events where you thought Bush was dead wrong, now seem less certain. The events where Bush triumphed now seem less clear. A thorough and well researched book, supported by interviews with the players closest to the President and Vice-President. Well worth the time. The chapter on the day of 9/11 reads like a thriller.
WHY CLIENT'S SHOULD NOT TESTIFY.
Rumpole's fourth rule of jury trials has been the source of much discussion in the comments section, not to mention blistering emails.
First, there are of course circumstances where you client must testify; self defense being the most obvious. Those are not the cases we are talking about.
A defendant enters a trial with very few advantages. Prospective jurors walk into the courtroom wondering just what your client did to get there? No amount of questioning on the presumption of innocence and burden of proof changes that basic human emotion. The best you can do is to select jurors who acknowledge that emotion and can agree to put it aside, and even that is an iffy proposition at best.
As the case proceeds, the next advantage the defense has is that the jurors are expecting a lot from the prosecution. They think the crime scene detective and their labs are superbly trained and able to extract evidence from the most innocuous crime scenes. They believe the detectives are smart and highly trained (depo tip- ask every cop and detective how far they got in school. 95% of them do not have a college degree.). As the evidence unfolds and the defense is able to show that the police did a fair job at best, made some mistakes, made some crucial assumptions that might not be true, overlooked possible explanations for seemingly inculpatory evidence, the concept of reasonable doubt and burden of proof begins to become more concrete for many jurors.
Now you get into the non-professional witnesses. Who has a grudge? Who has a reason to lie? Who hasn't seen what they thought they saw? A defense based on poor police work and unsure witnesses begins to emerge. The state rests.
The Defense's Case:
Are there alibi witnesses? Are there witnesses that were present that contradict what the strongest state witnesses testified to? Are there expert witnesses who contradict the work of the police and the theory of the prosecution? All of these types of witnesses, along with the problems already exposed during the state's case in chief can lead to an acquittal.
Then the defendant testifies.
All the work you have done up until that point goes out the door.
The burden of proof dissolves. The standard of proof beyond a reasonable doubt disappears.
The verdict now comes down to one and only one point: Was the defendant believable? If the jury doesn't believe your client, then no matter how weak the case, no matter how many problems you have exposed with the proof, a significant segment of the jurors will enter the jury room with one thought: "can you believe that story the defendant told?"
In our experience, the trade off is not worth it. Your client is not a professional witness. The jury is not likely to forgive his or her inability to answer a crucial question. In the Sean Taylor case, the issue arose over whether the defendant Eric Rivera was wearing a certain type of sneaker linked to the crime. On the stand he denied it. On cross, prosecutor Reid Ruben asked Rivera where the sneakers he claimed he was wearing were? Rivera, not prepared for the question, stumbled and looked to his defense attorneys.
It was a moment considered significant by most court observers.
Consider for a moment the unlikely scenario that Rivera is completely innocent. That the prosecution represents a tragic error in judgment. A moment like Rivera's hesitation and stumbling is seen by the jury as a defendant being caught in a lie. To a juror, that means he is guilty. They fixate on that moment, and ignore the rest of the evidence, no matter how weak it is. Because for a juror, the possibility that an innocent defendant may be caught in a lie is inconceivable, and yet we know that many of our clients who are innocent or less culpable, lie to the police and to us for reasons unrelated to the case.
In our experience, the trade offs are not worth it. It is an extremely dangerous and highly risky move to have your client testify. You should almost never do it.
Enjoy your weekend.
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