To Testify or Not To Testify: A Most Important Trial Decision

The question of whether a criminal defendant should take the stand in his own defense is one of the more nettlesome ones for a defense lawyer – and his client – to decide.  Oftentimes the decision can only be made during the heat of the trial itself where objective, clear heads are hard to find, and preparation time scarce.  For these reasons, and the enormous risks and stakes at hand, a criminal defendant truly needs the best and most experienced criminal attorney he or she can afford if a trial is in the offing, because the decision to put a client on the stand can be the sole determining factor in winning or losing a trial.

The Bridgegate Trial

The issue of whether a criminal defendant should take the stand in his own defense has recently come up in the news during the Bridgegate trial in New Jersey federal court where two former political allies of NJ Governor Chris Christie are accused of conspiring to close access lanes to the George Washington Bridge as an act of political payback to the Fort Lee mayor who refused to endorse Christie.  Defense lawyers for both defendants vowed during opening statements that their clients would testify: a bold move because, although criminal defendants have no obligation to testify on their own behalf – and the jury is instructed prior to deliberations not to take a defendant’s refusal to testify as a negative, should the Bridgegate defendants not take the stand following completion of the government’s case, a jury will surely not take kindly to basically being lied to in opening statements.  A jury is not a group of constitutional scholars: if they were promised by defense lawyers that their clients will testify, failure to do so – even if a good reason is provided at closings by the lawyers – the jury will surely wonder what else the lawyer has lied to them about. Not a good idea for a defense lawyer to lie to the jury or fail to deliver on a promise, no matter how weak the government’s case is and no matter that the constitution does not require that such promise be kept.  In essence, one sure way for a trial lawyer to lose the jury: let them believe you can’t be trusted.

Good Reasons To Testify — And Not To Testify

In some cases, it is a very easy decision not to put a defendant on the stand: his prior criminal record which is not otherwise admissible, can come roaring into the trial as the prosecutor seeks to impeach the testimony of the defendant turned witness.  But in other cases, there is no prior criminal record to be concerned about or even the existence of any prior bad acts which might be inconsistent with a defendant’s testimony at trial – and come into the trial through the door opened wide by a lying, testifying defendant.  In such instances, a lawyer needs to decide, mid-trial sometimes, how badly the case is going and if the legal equivalent of the Hail Mary pass is needed to pull the case out of the dumpster.  Because while juries are told that a defendant need not testify in his own behalf, juries are usually comprised of human beings, i.e. nonlawyers.  And normal people still believe that if they were accused of a crime, they would surely loudly protest their guilt in court, the prosecutor’s burden of proof be damned.

In addition, if the government’s witnesses are miscreants who have committed crimes their entire lives, putting a defendant on the stand with a comparably clean record allows the defense lawyer to argue at sentencing to the jury, “Who are you going to believe?  The government’s degenerate liars who are trying to fool you in order to work off a jail sentence, or my client, a man who is Mother Theresa in comparison?” (Yes, I’ve made such an argument – and it has worked)  But of course, the risk is always there that the defendant will drop the ball during his testimony, make a fatal mistake or be tripped up by a clever prosecutor (not as likely as prosecutors rarely have any experience in cross-examination although I have certainly faced some really bright ones).  In one case, I was faced mid-trial with the decision of whether to put the defendant on the stand.  As we wrestled with the decision, a quick move had to be made: the jury was coming back into the courtroom.  I looked into my client’s eyes and asked him if he was confident enough to take the stand.  He replied, “I’m leaving it in your hands, you make the call.”  Leaving it up to me, in my mind, was the decision.  The client did not testify and he walked out of federal prison a week or so later.

The Bottom Line: Spend More Time In Trial Prep and Less Time Panicking During a Trial

In the end, to me the risk of putting a client on the stand is rarely worth it unless I am convinced my client is losing the trial – a rarity for me as I cannot think of a time at the close of the government’s case that I have ever believed I was losing – at least until the jury came back with the sobering, bad news.  I have always believed that tremendous trial preparation causing the destruction of the government’s case should be the most valuable weapon a defense lawyer has in his bag of tricks – not the long shot of having a client testify, unless I am certain the defendant and the case itself can withstand the potential consequences.  Call the Law Offices of Jeffrey Lichtman at (212) 581-1001 to discuss your case — and potential testimony — today.