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From the Trenches: Part II

Special Considerations if your Client Elects to Testify

by Julia Kelly

I recently had the privilege to represent Daniel Harris in the Western District of Michigan in the United States of America v. Adam Fox et al.  Daniel was charged with conspiracy to kidnap the governor of Michigan, conspiracy to possess weapons of mass destruction, possession of a destructive device, and possession of an illegal short-barreled rifle.  Daniel was the only defendant who elected to take the stand to testify and was acquitted on all charges.

A criminal defendant has a constitutional right to testify on his own behalf according to the fifth, sixth, and fourteenth amendments.  That right is solely the decision of the defendant.  Whether my client will testify at his or her trial is one of the most important decisions at trial.  Certainly, the defendant has the right NOT to testify and the trial court will instruct the jury that they may not consider the defendant’s failure to testify.  The defense does not have to prove their client not guilty, rather it’s the prosecutor who must fulfill the burden of proof by showing, beyond a reasonable doubt, that the defendant committed the crime as charged.  These are important issues to touch on with jurors during voir dire.

However, even with those instructions, many jurors want to hear the defendant’s side of the case and may wonder why the defendant did not testify.  If a client does testify, its important to humanize them to the court and to the jury.  The jurors can observe the defendant to determine if the defendant is credible and sincere.   Defendant credibility is crucial to a successful defense.  If you fear your client cannot be entirely honest on the stand, he or she should consider not testifying.

Other important considerations include the assigned prosecutor, the judge, and the charges.  Most prosecutors are skilled at cross examination, but how aggressive they are can change the value of the testimony.  A seasoned prosecutor will try to break a defendant’s composure.  Most government witnesses are professionals who have testified many times.  In contrast, our clients typically have never been through the system.  The best testimony comes from a relatable witness who can stay composed even under aggressive questioning.  The temperament of the judge, as well as the actual charges, should also factor in your risk calculation.

Also, consider whether there are other ways to introduce your client’s statement.   Did the defendant give a consistent, helpful statement prior to trial that was entered into evidence during the prosecutor’s case-in-chief? Can you get in your defense through other witnesses?  If so, your client may not need to testify.

If your client elects to testify, make sure you have calculated the risks.  Trust your instincts on your case.   Your client must be well prepared to make a proper impression on the jury.  Every meeting with your client should be a practice for testimony.  Include investigators, paralegals, or other attorneys to ask difficult questions for preparation.

In Daniel Harris’ case, I was surprised to learn after the trial the media attention (and scrutiny from those not familiar with the case) surrounding his testimony.  Thankfully, Daniel did a beautiful job testifying and was acquitted on all charges.


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