I agree.
My comment that most criminal defendents aren’t innocent, I meant more along the lines of the majority didn’t come into the possibles by randomness. When certain types of crimes occur, police “round up the usual suspects.” If one is selected, it doesn’t mean he did it, but it does mean he had done it in the past, therefore he wasn’t a truly innocent person pulled out of the phonebook.
Because if you testify, you can be cross-examined. And the prosecutor is smarter than you are. No, not just “probably”. He IS. Embrace this as a fact of life. This is the prosecutor’s profession, and you’re a rank amateur. Worse, you’ll be nervous - because that’s the way the prosecutor will want you. You’ll be nervous, and you’ll be a newbie, and even if you’re innocent and pure as the driven snow, the prosecutor will make you look like you not only eat babies, but that you lie ineptly about it.
question for lawyers: would your strategy about the defendant testifying be different depending on whether the person is guilty or innocent? i don’t mean “innocent” as in “the d.a. can’t prove it” or “key evidence was excluded as the fruit of an illegal search,” but a case of, say, mistaken identification by witnesses or maybe a frame-up by street buddies. i can understand that the d.a. will trip up a guilty person who can’t keep his story straight, but if the innocent person keeps saying “i didn’t do this, i don’t know anything about it,” can that really be worse than not testifying at all?
IANAL etc. but if a lawyer knows for a fact that his client committed the crime of which he is accused, the lawyer is not going to put that person on the stand to say he didn’t do it. This is called suborning purjury and, as has already been noted in this thread, can lead to professional and legal sanctions againt the lawyer. If the client insists on testifying despite having admitted his guilt to his attorney, the lawyer can have the client testify in the narrative. If the lawyer doesn’t ask the lying defendant questions then the lawyer can’t be charged with suborning perjury.
Not germaine to the generalized discussion, I heard an interview where an analyst said that the prosecutors would have likely had Jayson Williams demonstrate how he had been holding the gun. The image of him holding the actual gun would have been very powerful in the jurors’ minds, and for that image alone it was a smart decision for him not to testify.
What exactly is “testifying in the narrative” anyway?
Normally witnesses testify in response to questions asked by the lawyer. If a lawyer asks a witness a question knowing that the witness intends to lie in response, the lawyer would be suborning perjury. To avoid this but to still allow the witness to testify, the lawyer calls the witness and the witness just tels his story without being asked questions. AFAIK this applies only to direct examination; witnesses don’t testify in the narrative on cross-examination.
“So, Reader99, have you stopped beating your wife yet? Answer ‘yes’ or ‘no’.”
IANAL, but I think that’s an example of why it can be a bad idea for even an innocent person to take the stand in his/her defense. The way that question is phrased, there IS no good way to answer it. And that’s the way a good prosecuter will phrase things. The way he structures his questions will be designed to make the defendent look bad to the jury. He knows what direction he’s trying to drive the cross-examination; the defendent doesn’t. So he’ll attempt to lay verbal traps for the defendent to walk into, confuse the defendent, paraphrase events in an oversimplified fashion and then not permit the defendent to give a lengthy answer that would clarify the events in question, etc. He’ll also try to get the defendent rattled enough that he/she might react in a way that, while justified, would look bad to the jury. The defendent who finally explodes in impatience or anger and yells at the prosecutor may have had excellent reasons for doing so - but the jury might see that and think “What a hothead! Maybe he IS a violent person. That’s the sort of person who commits this type of crime, so maybe he DID do it.”
None of those things can happen if the defendent isn’t on the stand in the first place, so it’s usually better not to take the chance and put him there.
Objection! Leading and suggestive, assuming facts not in evidence, badgering the witness.
Did I miss any?
It’s not leading. The question doesn’t suggest the answer. It does assume facts not in evidence, unless previous testimony established otherwise. You might toss “No foundation” in as well for good measure.
How often is a defense lawyer going to be in a position that he knows his client will be lying? I have a good friend, a public defender, who says that the first rule of defense is that you never ask your client “did you do it”?
So I’m just curious – are there different defense techniques for when you believe your client is guilty as opposed to innocent? Is it critical for you to know “the truth” when defending your client?
Agree (of course). Also, even if it were leading, you can lead on cross.
I’m out of order? I’m out of order? This whole COURT is out of order!
“Mu.”
“‘Mu’?”
“Mu. It is a Japanese Buddhist term, and means ‘Your question cannot be answered because it is based on false information.’”
Take that, Mr. Prosecutor! 