The Decision Whether to Testify - The Silence Penalty Law Review

Every now and again a truly impactful law review article is published that lends data-driven insights into the most difficult decisions that we make as defense attorneys. That is the case with the new law review article titled "The Silence Penalty".

By far, the toughest decision is whether or not the client will testify. In military courts-martial, I discuss this decision early in the case with the client. I use the following talking points:

1) We are going to plan for the client to testify. I believe military juries want to hear from the client. I explain to the client up-front that I am aggressive about having my clients testify.

2) We are going to prepare the client regularly to testify. This includes prepping him for cross-examination. I want them ready if we decide to call them.

3) The actual decision will be made at trial after seeing the government's case.

4) The decision will be based on a cost-benefit analysis incorporating the following time-tested factors for me -

a - I never call a witness - including the client - unless I have to call them to win. Is there some fact that I can only present to the jury through my client?

b - Has my client given any previous statements that are demonstrably false that will be exploited by the government? This is a major reason why it is better to remain silent with law enforcement.

c - Can I get my client's story out through other witnesses?

d - How did the alleged victim perform at trial?

e - Do I sense that the jury has an expectation that the client will testify? This is often the case in he said - she said cases, cases involving kids, sexual assault cases, and cases with high-ranking clients.

f - Does the client want to testify?

g - How well is the client prepared? Does the client have any anxiety or other performance issues that affect their ability to appear credible in front of the jury?

h - Are there any additional allegations that could be exposed to the jury through cross-examination that outweigh the value of the client's testimony?

i - Does the client have a prior criminal record that the jury might learn about? This factor is outweighed if there are parts of my client's story that only he can testify to.

I have historically had great success calling my clients to testify. There is bias in the defense community against calling defendants. One result of that bias is that military prosecutors don't always get real-world experience cross-examining defendants. In other words, sometimes the prosecutors are not that good.

"The Silence Penalty", by Jeffrey Bellin, looks at raw data comparing cases where defendants did and did not testify. Professor Bellin - of The William and Mary Law School - analyzes the results.

The data is absolutely fascinating to me - as a trial attorney:

1) Approximately half of the criminal defendants testify.

2) Only 40% of defendants later exonerated by DNA evidence testified.

3) Many defendants chose not to testify out of fear that the jury would learn about prior records.

4) Concerns about juries learning of prior convictions are legitimate. Juries statistically tend to convict in cases with prior convictions.

5) Over 90% of cases are resolved with guilty pleas. In the military, I would say the number is closer to 70%.

6) In cases with no prior record, the conviction rate was about 41% when the defendant testified. The rate was about 70% when they did not testify.

My belief is that the conviction rate is lower in the military when the defendant testifies. Most military clients are screened for good character when they join the service. Military clients generally make for good witnesses.

The article suggests that even disclosure of a prior record can outweigh the penalty of silence. According to a public poll in 2002, 50% of respondents believed that a person who invokes their right not to testify are probably guilty.

People simply don't understand why we have a right to remain silent.

Sometimes when I believe the jury expects the client to testify, I explain to them in my opening statement why there is a right to remain silent. Part of my opening statement goes something like this:

"Members of the panel, some of you may expect the accused to testify. We haven't decided whether he will yet. It's an agonizing decision. You must understand why you have the right to remain silent. The government has all the power and resources. We have none. Some of you might expect an innocent man to want to testify. You would expect him to shout his innocence from the mountaintops. Others might suspect that a person would say anything to save their life, to include lying. There is no way for me to know what you're thinking. For that reason, we place the burden of proof squarely on the government to prove their case beyond a reasonable doubt."

My hope is usually that the civics lesson will help prepare the jury for the possibility that my client might not testify.

The law review ultimately seems to conclude that defendants should testify more often. It's good to know that the data supports the belief that I have formed over time through experience.
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