The Jayson Williams trial in the news, where he has decided not to testify and the Martha Stewart trial where she did the same makes me ask this. Won’t the jurors just assume you’re kinds-sorta guilty in many cases if you refuse to take the stand?
Won’t taking the stand and telling your story at least give you a shot at some juror believing you?
The problem for a defendant, if he testifies at a trial, is that then the prosecutor can cross-examine him. If the defendant doesn’t testify on his own behalf, the prosecutor can’t call him to be a witness. Generally, defense attorneys figure the potental gain for a defendant to testify is outweighed by the risks.
The usual reasoning is that prior criminal conviction are not admissinle for the purpose of proving that you commited the current crime… but they ARE admissible in some form as a measure of credibility. So if you have a prior record and you testify, the jury will likely be able to hear about your prior record. If you don’t testify, then your past is not revealed.
There are other considerations. If you cannot truthfully testify in an exculpatory manner, then taking the stand is a mistake, and may open you to a perjury charge if convicted, and put you in a bind at sentencing time. In other words, if you’re found guilty, and you’ve testified that you’re innocent, you’ve lost some credibility with the judge or the jury when it comes time to ask for a lenient sentence: either you steadfastly mainatin your innocence, which is fruitless and suggests that you’re unwilling to be repentant, or you do a 180-degree turn and admit that you are guilty but somehow deserve leniency.
It may also limit your attorney’s effectiveness: if he knows you are planning to perjure yourself, then he cannot conduct a traditional direct examination without being guilty of suborning perjury.
The Fifth Amendment says you can’t be compelled to testify against yourself, meaning the prosecution cannot call you as a witness. If you take the stand in your own defense, however, the prosecutor can cross examine you. Many times, this is seen as too big a risk by the defense, since a good prosecutor will do everything he can to punch holes in the defendant’s testimony.
It might, but remember, the defense never has to prove the defendant innocent. In a criminal trial, the only necessity is to show reasonable doubt of the prosecutor’s arguments. So even an innocent person taking the stand may not even help that much.
The point of a trial is for the prosecution to prove that the defendant committed a crime, not for the defendent to prove his innocence. The defense team does not actually need to argue a defense, nor does it need to provide a counter-argument. The defense merely needs to establish a reasonable doubt as to whether the prosecution has proved its point. It’s not unheard of for the defense to simply sit back and let the prosecution make its case. Declining to present a defense would be a strong way of telling the jury, “The prosecution has clearly not proven its case, and so no defense is needed. Your decision is obvious: not guilty.”
How often do lawyers get punished for suborning perjury? I know it would typically be very hard to prove, but does it ever happen? I’ve seen enough laywer TV shows to know that when it is announced that a defendent is going to testify “in the narrative” that means that his lawyer believes he is going to commit perjury. Do defendents do this often? Do they have to get permission from the judge? It seems this maneuver relies on the ignorance of the jury. If I were on a jury and this happened wouldn’t I inform the other jurors what it meant, and that would destroy the defendant’s defense?
If you told other jurors that the defendant’s narrative testimony means that the defense attorney believed he was lying, then you are a) considering evidence not properly placed before you; b) advising other jurors of evidence not properly placed before them; c) forming an opinion on the case before it is presented to you for deliberation; d) discussing the case with other jurors before the case is presented to you for deliberation. Each of these would be a violation of your oath as a juror and each would probably result in an immediate mistrial.
IANAL and I’ve never served on a jury, but my feeling would be that in this instance you would be obligated by your oath not to inform the other jurors of anything and ask the judge to remove you from the jury.
There’s more potential for an attorney disciplinary hearing than a for a criminal charge – the burden of proof is lower and there are not nearly as many procedural safeguards.
It happens. Not frequently, I grant. But it happens.
But out of curiosity, and to piggyback on Lemur866’s question, are there other circumstances besides “the witness is probably going to commit perjury” in which a witness would testify in the narrative?
Pro se defendant.
Of course I wouldn’t talk to the other jurors about it until deliberation. I’ve served on 3 juries, and there was no question of discussing the case until it was time to do so. But once we deliberate, why couldn’t I bring up that testifying that way was a way for a defendent to testify in his own defense without causing his lawyer to suborn perjury?
Obviously, I wouldn’t state that the defendent was neccesarily lying, just that testifying that way was a good indication that his lawyer felt the need to distance himself from his client’s testimony.
And even if I didn’t talk to the other jurors about my conclusions, why would knowing what “testifying in the narrative” meant mean I should be dismissed from the jury pool? I understand that lawyers and cops are routinely dismissed during jury selection, but they are not dismissed automatically. If the defense attorney asked me if I knew what the term meant, and used one of his peremptory challanges to dismiss me when I answered truthfully, so be it.
I don’t see how legal knowledge would compell me to ask the judge to excuse me. But on the other hand, this tactic seems to rely on the ignorance of jurors. Given that although it may not be widely known it certainly isn’t a secret, how can an attorney ask for it and still expect the jury to believe his client?
Let’s face it. Most criminal defendents aren’t innocent. They did something or the trial would not occur. They may or may not be legally guilty, but most likely something wasn’t right or they would not be there.
Most jurors probably do think if the defendent doesn’t testify they did something, are instructed by the judge not to think that way and still they do. But it’s usually better to leave well enough alone, than have the defendent confirm the jurors view of wrong doing.
The defense attorney is primarily or solely concerned with the legal consequences. Defendents who are public figures should consider testifying, as their public reputation is at stake too.
Technically I suppose this is true. After all, the standard required for arrest or indictment is “probable cause,” which I guess can be summarized as “most likely something wasn’t right.”
But it’s a flawed approach to how the fact-finder should view the situation. The fact-finder should be assuming innocence, and granting to the accused every reasonable inference to be drawn from the credible evidence.
Unless a lawyer steps in to correct me, I will stick by my contention that this constitutes a violation of your oath as a juror because you are considering evidence that has not been presented to you. You don’t know as a matter of fact the reason why the defendant is testifying in the narrative.
Because as soon as you make the decision that “testifying in the narrative” means “the defense attorney has a good reason for distancing himself from the testimony” with a likely reason being “the witness is probably lying” means that you have formed a conclusion about the case before it is given to you for deliberation. In the interest of justice you hould advise the judge that you have formed an opinion on the case and the judge should probably remove you.
Obviously, I defer to Bricker on this issue, but I would imagine that the defendant’s potential appeal to the jury is considered as well.
Even if a defendant were totally innocent, if s/he had a shady look about them, or a poor way of communicating, I would imagine a defense attorney would want to keep them away from the stand.
You can say all you want the defendent is “innocent till proven guilty” but the fact remains that people still think if you refuse to take the stand you are guilty. It is a predjudice that a lot of jurors have. Despite what they will tell a judge.
In Martha Stewert’s trial, she should probably have testified. She is VERY EFFECTIVE at bringing people over to her side thru sympathy. She was portrayed as a HARD BUSINESSWOMAN. Whether you believe this or not that was the perception. She could have won sympathy by testifyiing. However not everyone is effective. Some people will get on the stand and fall apart.
Martha (we’re on a first name basis, Martha and me) may have garnered sympathy in direct examination, but may also have lost it and then some in cross. Communication skills, however good, are sometimes useless in the face of a withering cross-examination. The attorney isn’t letting you tell your story, he’s telling his or her story through you by asking questions that you can only answer “yes” or “no” to, or some other limited answer that is exactly what he or she wants you to say. Any attempt to explain your damning testimony beyond the answer will be objected to, and any prevarification will get you hammered like an eggshell. Her attorney may have seen this coming.
Yes, but the point still stands that prosecutors are VERY EFFECTIVE at making witnesses trip up, mess up their story, perjure themselves, and above all appear unsympathetic to the jury. Especially with complicated matters like insider trading and so forth, the risk of having her shredded by the prosecutor on cross was way too much to justify any potential gain. It would have been a last-ditch roll of the dice, and a terrible decision by her defense, I think.
God, I can’t seem to get out of here. Too many mistatements of law every day. Sigh.
Otto, what Lemur866 would be doing isn’t “considering evidence that has not been presented to [him].” He (sorry if you are a she, Lemur, but I can’t see that) is drawing an inference from the events of the trial, an inference which he has been advised by the judge not to make. If you don’t think jurors violate their instructions on a right regular basis, think again. Indeed, most trial attorneys make the assumption of such violations, based on human nature. I am certain that Bricker has, on more than one occasion, kept the impermissible, but nevertheless likely juror conclusion in mind when shaping trial strategy, including the issue of who testifies. Still, Lemur866 would be violating the law under which he agreed to decide the case.
Also, it is a bit ridiculous to assert that Lemur866 would have to withdraw as a juror if he reached a conclusion in his mind such as the fact the defendant might well be lying. What he would have to do is listen to the testimony, and see if it felt truthful. Now, again, if he goes into the jury room, and then thinks to himself, well, I’m not gonna believe that lying’ SOB, he “testified in the narrative” and that always means lying, then he is not doing what he swore an oath to do. Having served as a juror, having been the husband/significant other of those who have, I can assert without fear of contradiction that strange and mysterious are the ways of a petty jury.
As for Markxxx’ statement, I disagree. We are by now well versed in the concept of having a right to stay silent. Certainly some jurors will; many won’t, as I can attest from my own experience. In some situations, where testimony from the defendant would solve a disagreement among competing versions of the facts, it seems more likely that this impermissible inference would be drawn. Those with considerably more experience with juries can perhaps provide personal opinions, and perhaps someone can link some studies, though I always take jury studies with a grain of salt because I think that jurors often lie about what happens in a jury room after they leave it; the only good way to know what really happened is to film it and watch.
I can attest that in my own vast experience of serving on 3 juries, 2 where the defendent did not testify and one where he did, none of the other jurors said anything negative about the lack of testimony. And we all took very seriously the idea that the defendent was guilty until proven innocent…on one jury we acquitted a defendent who was clearly probably guilty of some sort of silly behavior, we just felt the prosecutor didn’t prove he commited the exact things he was accused of.
Now, about violating the Judges instructions. Obviously I’m not a lawyer. If someone testified in the narrative, would the judge give the jury instructions that they were not to draw any inferences from that? If so I certainly wouldn’t talk to the other jurors about it, but of course I don’t see how I could keep it from influencing me completely. However, I am reasonably certain that–if the judge instructed me too–I would make a good faith effort to keep that knowledge from changing my decision. After all, I am perfectly comfortable accquitting someone I’m pretty sure is guilty.
So, is it actually the case that the jury is instructed not to let the narrative style of testimony influence them?