That’s the main thing - if the person really needs to take the stand, it’s because the facts don’t demonstrate the story they want to tell. Otherwise, the facts speak for themselves. If “I wasn’t there” is the claim, telling the story isn’t really going to prove it… but then again, it’s the prosecution’s job to prove you were there, not your job to prove you were not. If the truth sounds like a concocted alibi, telling it only works if you’re a really good actor.
So if the facts don’t bear out “I was abused” then it only works if the person is a convincing actor.
Recently I was at a medical record workshop put on by my hospital’s attorney. He said that according to studies, 70-80% of jurors have made up their minds at the end of opening statements, and thereafter confirmation bias their way through the evidence.
Now, I don’t know how good those ‘studies’ are, or whether they apply just to malpractice or more broadly, but giving away as little as possible to the other side seems a sound legal strategy.
I can’t imagine how those studies might have been conducted.
From glancing around a bit, it looks like the origin of that claim is a book published in 1966 called The American Jury, by Hans Zeisel and Harry Kalven. Some claim that this is a distortion of what is actually claimed in that book (or that the claim is wrong, anyway).
It’s pretty much the same over here where we do have the fifth amendment. A defendant can’t be compelled to take the stand, but if he does voluntarily take the stand in his own defense, he opens himself to cross-examination by the prosecution. Under those circumstances, he can’t refuse to answer the prosecutor’s questions claiming his fifth-amendment rights. By taking the stand, he has essentially waived his right against self-incrimination in relation to topics covered in the direct examination.
Another reason for keeping the defendant off the stand is that the prosecutor can try to get the defendant to say something that will allow in some previously disallowed piece of evidence.
If the judge says that the prosecutor cannot mention any of an accused rapist’s former girlfriends, and then the defendant gets on the stand and says he never would have had sex with the accuser because she has short hair, and he doesn’t like women with short hair; the prosecutor may then get to show the jury a picture of the defendant with an ex-girlfriend who had short hair, and, Oh my! a black eye! in the picture. Whether the defendant was responsible for the black eye or not, that picture is going to effect the jury’s perception of the defendant.
That’s not a great example, but it’s the best I can do on short notice. I have a cousin who works for a prosecutor’s office-- maybe I can get a better one. But you get the idea.
If there is some fact that is absolutely going to prove the defendant didn’t commit the crime, then there’s going to have to be someone other than the defendant who can testify to that fact. If he or she were somewhere else when the crime occurred, for example, then there should be someone or some piece of evidence (video, cell records, etc.) to corroborate that. In which case, the defendant still doesn’t testify. If the defendant is the ONLY person who can provide his own exoneration, that’s a problem all by itself.
When I was on a jury, the defense attorney asked everyone in voir dire if they understood that the defense wasn’t required to put on a case, and the burden of proof was entirely with the prosecution. Most people said that yes, they did, but there were a couple of people who said something like they felt they needed to “hear both sides of the story.” Those people all got dismissed. I think a few of them toward the end had caught on to the fact that it was a way to get dismissed, and said it for that reason, but the defense definitely tries to weed out people who don’t quite get the concept of the “burden of proof.” The defense attorney explained it pretty thoroughly in the speech he made before he even asked any questions.
The less the defense does, the less ammunition the defense gives the prosecution.
I also think that while there are some people who think that only a guilty person refuses to take the stand, there are just as many people who have seen enough TV cop and law shows to be suspicious of someone who takes the stand as someone who feels he needs to “sell” himself because he has the extra burden of actual guilt.
That’s interesting. My initial bias would be the exact opposite, although I would hope that if I were on a jury I could put my bias aside. My bias, as evidenced by my OP, is that a person taking the stand is more likely to be innocent.
Rest assured that if I were a juror in YOUR criminal trial, your word would be as good as gold with me. It’s the other 11 folks you gotta worry about…I’m very vulnerable to peer pressure.
Some people don’t have the personality to testify. I was in my lawyer’s office 30 years ago and a young drug lord was walking out Bob, the lawyer was laughing his ass off. "I told him I wouldn’t be putting him on the stand, and he told me ‘You can put me on, I am very effluent, very very effluent.’ "
So what percentage of defendants do take the stand? In the one trial I’ve been a jury member on, the defendant did.
He was very persuasive, basically blamed his housemates. We acquitted him (I thought he was lying, but me “thinking” he is lying isn’t he standard needed to convict). If he hadn’t, would we have made the same decision? I don’t know. But again, it was a case where there was ample evidence that a crime had been committed, and by getting on the stand, he was able to reinforce the idea that maybe it wasn’t him who committed it.
The Judge said “Son, what is your alibi?
If you were somewhere else, then you don’t have to die.”
I said not a word, though it meant my life,
For I was in the arms of my best friend’s wife.
[/QUOTE]
