The Clean Defendant

In a very astute New York Times Dealbook article, Peter Henning provides some excellent insight into the problems faced by lawyers in deciding whether to put a defendant on the stand.   Not your basic drug dealer defendant, or the chain-snatcher, because everyone understands that they’ve got priors and by putting them on the stand, who knows what damage will flow.  No, these are clean defendants, well-educated, white collar guys. The dream defendants. The ones you can call as witnesses to deny their role in the crime.

Except when you can’t.

The pressure to tell your side of the story carries the risk of coming across as less than forthcoming — and perhaps even a liar — that can make the testimony the focal point of the proceeding. Especially in white-collar cases, which revolve almost exclusively around what the defendant was thinking at the time, the witness’s credibility can push the rest of the evidence into the background.

The flip side is that jurors want to hear the defendant say he didn’t do it.  Who wouldn’t?  And why wouldn’t a person who didn’t do it not want to say he didn’t do it?  After all, that’s what the juror is certain she’d do.  Just like she’d never confess to a crime she didn’t commit. 

The judge will instruct a jury that it can draw no inference from the fact that a defendant did not testify in his own defense. This, of course, means nothing to jurors, who mutter silently to themselves, “yeah, yeah, yeah, but why wouldn’t he? If he wasn’t guilty.”

Getting the defense version in front of the jury by calling the defendant to testify is the easy part because counsel will prepare the client to put the case in the best light. Although courts echo the phrase that a trial is “a search for the truth,” in reality, it is far more theatrical, playing to the audience of 12 sitting in the jury box responsible for deciding guilt.

The direct examination is fairly easy, as the defendant is well prepped as a witness, just as the prosecution’s witnesses are well-prepped for their show.  Let there be no doubt, to the extent it can be, trial testimony is a well-choreographed performance for all involved. It doesn’t mean that it’s all a big lie, but that each side wants its truth to come off as truthy as possible.

The problem in calling the defendant to testify is the second act: cross-examination. Prosecutors often can hardly contain themselves at the thought of getting a shot at the defendant.

Most prosecutors are mediocre, at best, at cross. They don’t get much practice doing it, and cross is a very different skillset than direct.  Still, even a mediocre cross creates a host of problems that can be, well, problems.

Unlike an ordinary conversation, in which one can steer away from unpleasant topics, the very nature of the opponent’s questioning is to make the witness uncomfortable.

This is kinda the point of cross, to challenge the well-rehearsed performance on direct. The defendant, unlike any other witness at trial, takes the stand at a deficit. He’s the guy whose life is on the line, and therefore starts from the position of having a motive to do anything he can to save his butt.  It may not “fair,” but it’s real.

There simply is no checklist for deciding whether to call a client to the witness stand in a white-collar prosecution. In cases involving street crimes, many defendants have a criminal history that could be brought out if the person testifies, but will otherwise not come before the jury if the person remains silent. White-collar defendants, on the other hand, rarely have more than a minor violation in their background that might affect the jury’s perception of them, so they may feel more freedom to testify.

There actually is something of a checklist, and it starts with prior criminal history and goes from there. What are the potential benefits and detriments of the defendant’s testimony based on the evidence in the prosecution’s direct case. How vital is the defendant’s testimony? How will the defendant do under pressure?  Will he get angry? Will he get confused? Will he be too nervous?  Can he follow instructions? Can he stop talking?

But they also like to talk — sometimes quite a lot — as well-educated and successful people are wont to do. So white-collar defendants often have made a number of statements, whether in emails, chat rooms or on recorded conversations, that can be used against them to prove their state of mind.

And they like to talk on the stand, to “outsmart” the prosecutor, to answer questions not asked but to blunt the tacit point of the question.  Smart people gonna smart, and they just can’t stop themselves from doing what comes naturally.

It comes down to figuring out how well the defendant can perform on the witness stand, particularly cross-examination, as measured against the strength of the government’s case. There are no “Perry Mason” moments when the real perpetrator is unmasked in the closing moments of trial. The risk is that the defendant could end up making a borderline prosecution even stronger if the jury decides the person is not telling the truth, resulting in a conviction.

Jurors decide things for good reasons and bad reasons. A defendant looks “shifty” or has beady eyes? Yeah, jurors notice stuff like that and think that he must be guilty.  It never dawns on them that he still looks shifty or has beady eyes when he goes to the supermarket and buys milk.

Given that the jury already suspects the defendant is guilty (because if he wasn’t, why would they be prosecuting him?), there are a ton of potential pitfalls that elude control or explanation.  But there is one fundamental problem that is missing from the discussion, but is huge on the checklist of whether to call the defendant to the stand.

Does he think he can cut it? After prep, the defendant comes to the realization that he can’t take the pressure, can’t bear the tension of his life being on the line and one slip-up, one errant word, one momentary burst of anger, one mistake, and he could seal his own fate.  If that’s how a defendant feels going in, he’s probably right.


8 thoughts on “The Clean Defendant

  1. Scott Schramke

    This highlights the role of defendant’s counsel as a counselor, in the therapeutic sense. Guiding the defendant through the thicket of legal process is often a breeze vs. reigning in his emotional volubility and maintaining the requisite confidence to face trial.

    1. SHG Post author

      Being “therapeutic” may be the worst thing a lawyer can do. This is about being brutally real. When lawyer plays therapist, he can talk a defendant into doing something the defendant is ill-prepared to do by emoting over the problems with positivity. That’s pretty much guaranteed to fail. This is where a defendant most needs a lawyer, not a therapist, to make the hard decisions.

  2. Mario Machado

    If the client does decide to take the plunge, another decision is whether to tell the jury during opening statements that he will take the stand. If you do tell them: (i) you give the prosecution more time to prep for the cross, but (ii) you establish credibility with the jurors if your client takes the stand and validates your promise. If you don’t tell them: (i) you may create uncertainty with the prosecution, and (ii) if he does not testify for whatever reason, you will avoid having to explain in closing why he did not.

    1. SHG Post author

      Telling the jury in the opening what will be done in the defense case raises a bunch of significant issues, but it’s not the subject of this post. Let’s stay on topic.

  3. Dan

    I’ve found that there are times when even if a defendant has clean record, he is just not likable (although they usually lack the ability to see this and think they’re actually quite charming) and whether it is testifying at trial, proffering to the prosecutor, or even just making a lengthy statement at sentencing about how sorry he is, it is better to keep the defendant a mute abstraction.

  4. Jeff Gamso

    I’ve long been of the view that once the defendant takes the stand, the only real question the jury takes up is whether they believe him. (OK, sometimes it’s whether they like him, too.) But in the real world, as opposed to the world of case law and jury charges, it entirely shifts the burden of proof. Which is the real bitch of making these decisions.

    1. SHG Post author

      Absolutely. In the jury’s mind, once you put on a defense, they see the sides as equals, and the defendant’s failure to prove his innocence becomes their justification for conviction.

  5. mb

    One of the reasons I’m glad I don’t practice law is that it’s so frustrating trying to get others to see things as I see them, but cross examination, I’m sure, is the most powerful tool that exists toward that purpose. It’s one thing to say that a case is weak sauce circumstantial evidence. It’s another thing to demand direct evidence from the opposition’s witnesses, and force them to admit that they don’t have any, in front of a jury. I would be reluctant to hand the state such a tool, to be used directly towards the issue of a client’s credibility and moral character, no matter how smart, educated, prepared, or “clean”.

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