Colin McCallin Jan. 19, 2022

In criminal trials, there is usually a question that looms large in the minds of defense attorneys. Should the defendant testify? Each defendant has their own quirks and challenges and they need to be examined on an individual basis. In this article, we give you some food for thought as to how to evaluate whether a defendant should get on the stand.

CONS of Testifying:

Cross Examination

When a defendant testifies, they immediately subject themselves to cross examination. Prosecutors are trained to aggressively question witnesses. Having the defendant take the stand gives a prosecutor the unique opportunity to catch a defendant off guard and ruffle their feathers. If a defendant is not great under pressure, they may make errors or even inadvertently incriminate themselves.

No Burden of Proof

Many defense attorneys would say that it is safer to let the prosecution make their case without taking the inherent risks in putting their defendant on the stand. After all, the burden of proof always falls on the prosecution’s side. The prosecution has to prove beyond a reasonable doubt that the defendant is guilty. Some would say that all the defense has to do is poke holes in the prosecution’s story, create doubt in the jury’s mind about it, and ultimately this can be easier than trying to convince a jury to believe the defendant.

Jury biases

Human beings are not perfect, as we well know. We have all had experiences that color our view of other people, whether it be the tone of their voice as they say they didn’t do it, or simply that the color of their hair makes them think of a particularly hateful teacher they had in kindergarten. Maybe they forgot to eat breakfast or stubbed their toe on the dresser this morning. We are all subject to the ebb and flow of our emotions and this can be a problem when a defendant is testifying in front of a jury of six to twelve people with different backgrounds and experiences. Testifying in front of a jury can be a gamble.

PROS of Testifying:

Appearance of Sincerity

When a defendant gets up on the stand, it is a strong sign of confidence from the defense side. This, in itself, can have a great effect on how the jury views the defendant. Many jurors put a premium on honesty and forthrightness. When your defendant puts his hand on the good book, he vows to tell the truth, the whole truth, and nothing but the truth. Hearing from the defendant, in some jurors’ minds, shows humility and courage, even if everything they say is not perfect.

Emotional Connection with Jury

A very powerful reason to have a defendant testify is the prospect of them connecting emotionally with members of the jury. If they are a sympathetic figure or tell a compelling story, this can sway things in their favor. If there are mitigating factors, such as abuse, extreme emotional distress, or other factors that contributed to their crime, it could be worth letting them tell their story.

Bringing up Specific Evidence

If there is something crucial to the case that only the defendant can bring up, it may seem like a good idea to have them testify. However, the benefits of presenting this evidence should be weighed with all the other risks. If the defendant has some compelling testimony, but they risk incriminating themselves, for example, it may be best to bring the evidence forward in some other way.

Shaping a New Narrative

Sometimes a defendant can tell a compelling story that will not only poke holes in the narrative the prosecution is telling, but also create a whole new picture for the jury. This can be a powerful tool in your favor, but it poses its own problems. This puts you in the vulnerable position of having to construct a new story that the prosecution will undoubtedly try to rip apart.  With that said, the defendant’s story must be factually iron-clad and emotionally compelling.

Examples in Recent Trials:

Ghislaine Maxwell 

Maxwell was charged with sex trafficking in relation to her former partner, Jeffrey Epstein, who was employing underage prostitutes on a daily basis. Maxwell did not testify. The tactic in Maxwell’s case seemed to be denial. Maxwell was not about to admit any guilt and she certainly was not going to subject herself to cross examination. Her own words were, “Your honor, the Government has not proved its case beyond a reasonable doubt and so there’s no reason for me to testify.” 

Results: Maxwell was convicted of five counts of sex trafficking. Would the results have been different if she had expressed some remorse on the stand? Or perhaps cast herself as another victim under Epstein’s control? We will never know. But the results here are not great for Maxwell. Listen to our podcast on this case here.

Elizabeth Holmes 

Former Theranos CEO, Elizabeth Holmes took the stand to combat charges of fraud after lying about the benefits of her blood testing product. Holmes clearly has poise when it comes to representing herself and her attorneys may have thought she could successfully reframe the story. She told an emotional story about the abuse she endured at the hands of her partner at the time.

Results: Holmes was convicted of conspiracy to commit wire fraud and three counts of wire fraud. This result is not great here. Her testimony ultimately may have hurt her as much as it helped her. Although she presented a regretful face, she claimed many times to have forgotten certain crucial facts. It never comes across well when a defendant appears to be lying on the stand. Listen to our podcast on this case here.

Kyle Rittenhouse

Kyle Rittenhouse was charged with the murders of two protesters and attempted murder of another when he shot them all with his assault weapon during a civil rights protest in Kenosha, Wisconsin. His lawyers decided to present his case as pure self defense. When Kyle took the stand, his youth and vulnerability were on full display. Kyle presented himself as having been completely terrified by his victims and having no other recourse but to shoot them.

 Results: Rittenhouse was found not guilty on all counts. His emotional testimony most likely did not hurt him and, above all, he presented the story with what appeared to be the raw honesty of a child. The results in his case could not have been better. Listen to our podcast on this case here.

If you find yourself in need of excellent legal help, contact us at Hebets & McCallin. We can help!