Thursday, June 14, 2012

Considerations in a Criminal Defendant's Decision to Testify


An experienced criminal defense attorney specializing in white-collar cases has given one of the best analyses ever of why it is often a bad idea for criminal defendants to testify at their trials and why those criminal defendants still do it.

Writing a post dated June 12, 2012 on the White Collar Crime Prof Blog, Lawrence S. Goldman pointed out that criminal defendants who testify are forced to undergo cross-examination, and that cross-examination gives the prosecution the equivalent of another closing argument.   Writing about an insider trading case, Goldman writes: 

"Interrogation about these repeated events would allow the prosecutors in effect an extra summation to hammer on these facts, indeed perhaps even better than a summation since the defendant would have to respond directly to each of the allegations, whereas in summation an attorney would have the option of ignoring, glossing over or generalizing about all or portions of the evidence."

Goldman's insights regarding the effect of a criminal

defendant's testimony are particularly valuable (indeed, they 

are so valuable that they justify the funky look of the rest of 

this post) :

"In any case, white-collar or not, I believe that when a 

defendant testifies, the standard of proof beyond a 

reasonable doubt is diluted.  Jurors, rather than 

asking themselves whether the prosecutor has proved 

the case beyond a reasonable doubt, focus more on 

whether the defendant probably told the truth.

"The decision whether to testify is one of the very few 

that virtually all lawyers, and all ethics rules, decree 

belongs ultimately to the client.  It is often difficult to 

convince white collar clients, especially those whose 

egos have become enlarged because of their extreme 

success, that they will be unable to convince a jury."

Also worth reading is Goldman's post of May 29, 2012 on that

same blog entitled "DOJ 'Punishment' of Stevens Prosecutors 

Too Lenient," which includes the lines "If a truck driver 

causes serious personal injury by reckless driving, is there 

any doubt he would be fired.   The injury to Senator Stevens 

was serious; the punishment was far too gentle." 

1 comment:

Celia Harrison said...

Oh the outrage when white collar defendants are wronged, but the everyday malfeasance against those who can't buy justice and must use the public defender agency is never discussed.