Wednesday, February 21, 2007

Scooter Passes On Witness Stand


The Cool Justice Report
Feb. 21, 2007

EDITOR’S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

High drama concluded in the Scooter Libby trial without testimony from the political power broker turned defendant.

Whether to testify is a question that faces every criminal defendant and every trial lawyer. The Bill of Rights provides, among its protections, that a defendant in a criminal proceeding cannot be compelled to give evidence against himself, and that the state bears the burden of proving the charges beyond a reasonable doubt. Thus, the state cannot call the defendant to the stand in its case, and the defendant has no burden to prove his innocence. Further, that protection has spawned an instruction to jurors that if the defendant elects not to testify, no adverse inference may be drawn from his silence.

The natural inclination of jurors in a contested case is to want to hear from the defendant. As testimony progresses jurors can often be seen peeking at the defendant, watching body language, wondering what his reaction might be to what they are hearing.

The concept of burden of proof is critical to the American criminal trial process, but is contrary to how ordinary people resolve disputes in their own lives. We are ingrained with a belief that there are “two sides to every story.” How is the defendant’s side told if he does not take the oath and testify?

Experienced trial lawyers will utilize the voir dire (jury selection process) to emphasize the concepts of burden of proof and the right to not testify. Potential jurors being honest in their responses occasionally will reveal that they cannot accept that a defendant does not have to prove his innocence. Defense lawyers will press questions as to whether the potential juror honestly will not penalize a defendant who elects not to take the stand. Those who cannot accept either principle are usually excused by the trial court from jury service.

But what issues does a lawyer weigh in advising a client not to take the witness stand? The client has an absolute right to testify, even in the face of his lawyer’s strong objection. Many judges, when informed that a defendant will not testify, will conduct a hearing outside the jury’s presence to ensure that the defendant is aware of that right and is voluntarily relinquishing the right.

Often pre-trial statements from a defendant that are admitted into evidence contain the defendant’s version of the event. Many times a prosecutor, believing that a portion of such a statement aids the state’s proof, will offer it, despite the fact that it also contains defendant’s denials or explanations. In such instances, most experienced counsel will opt to stand on that statement and not expose the client to cross examination.

Exposure to cross examination from an experienced prosecutor is one of the leading reasons to not have a defendant testify. Many times the defendant has some prior felony conviction, or multiple convictions. If he does not testify the jury will not learn that. If he does testify the fact that he has felony convictions is admissible to impeach his credibility. The law provides that one with a felony conviction is less likely to be believed that someone with no criminal record. Jurors do not learn the nature of the prior felonies, but the existence of a criminal record can be extremely prejudicial.

In other cases a defendant may have given prior statements that differ from his trial testimony. When that defendant testifies those statements are also admissible to impeach him.

If a court has excluded a statement given to the police in violation of the defendant’s constitutional rights, and that defendant then testifies at odds with what is in the excluded statement, the statement then cannot be admitted to impeach him.

In the federal court a defendant who testifies and is ultimately convicted will have his sentence increased for “obstruction of justice” based on the concept that the jury verdict demonstrates that he has given false testimony.

Then there is the “dumb as rocks” defendant. Some people are just inarticulate or not smart enough to handle an aggressive cross examination.

On balance, defense lawyers employ a risk versus benefits analysis. What does a defendant gain from taking the stand? In many cases it is nothing more than a denial. But he has already denied the issue by his plea of not guilty. Is there some critical fact that can only be rebutted or explained by the defendant? That is generally the case when a defendant does take the stand.

Of course the most compelling reason for keeping the client off the stand is that he is guilty.

Lawyers have an ethical obligation to not be an accessory to perjury. The real challenge comes when a lawyer knows his client is guilty and the client insists on testifying and denying his guilt. A lawyer cannot keep this person from testifying and cannot violate the attorney client privilege by informing the court that the client intends to perjure himself. Ethically the lawyer will simply not participate in the questioning of this client, indicating to the court that the client is going to testify in narrative fashion, without any questioning from counsel. Judges understand what this means and those defendants are universally convicted.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim’s corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy and is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV.
Andy Thibault, author of Law & Justice In Everyday Life and a private investigator, is an adjunct lecturer of English and a mentor in the MFA writing program at Western Connecticut State University. Thibault also serves as a consulting editor for the literary journal Connecticut Review. Website, and Blog,

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