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One Surefire Way to Lose Your Case

If you've been a criminal defense attorney for very long, you've suffered through your client destroying his own case by testifying. When it's happening, it feels like a razor sharp knife slowly twisting into your spine. The client who was calm, cool, and collected during preparation morphs into the picture above during cross-examination. Is there any way to avoid this scenario?

I've had the benefit of talking to jurors after a number of my jury trials. One topic has dominated those conversations more than any other. In cases where my client didn't testify, it's usually the first thing that comes up. I've learned that most people think that if they were accused of a crime they didn't commit, they would take the stand to declare their innocence. When a defendant doesn't testify, people tend to assume it's because he has something to hide.

For newbie lawyers, this can be hard to understand. We all learn in law school about the 5th amendment right against self incrimination. Virginia, like every other state, has a jury instruction that states that a defendant's failure to testify cannot be considered against him at a criminal trial. So why can't these freaking jurors just follow the jury instructions? Because they're humans and not robots. I can confidently tell you that talk about the 5th amendment and jury instructions are no match for human nature. If your client doesn't take the stand, jurors are going to consider it. This is not an opinion. It's a fact that I've learned from years in the trial trenches.

So does that mean criminal defendants should always take the stand? If only it were so easy. Defendants are nervous on the stand. They have a prosecutor grilling them, and their freedom is on the line. Even highly educated and prepared defendants fall apart. I recently watched the documentary The Smartest Guys in the Room about the Enron accounting scandal/scheme. Jeffrey Skilling and Kenneth Lay, the former CEOs of Enron, both testified in their own defense at criminal trials. Both lost their cool while being cross-examined, and both were convicted by juries. Closer to home, a former attorney in Virginia Beach, Brian Gay, testified in his own defense at a federal criminal trial accusing him of stealing from a client's estate. According to the Virginian-Pilot account of his trial, Gay came across as angry and "rambling" on cross-examination. He was convicted and sent to federal prison. If former lawyers and CEOs of Fortune 500 companies (who should be dream witnesses) suck at testifying, what chance does the average defendant have?

The reality is that defense attorneys are presented with a lose-lose scenario. If the client testifies, you risk him turning into Hulk and completely destroying the defense. If you keep the client off the stand, the jury assumes you're hiding something. The defense is left trying to figure out which is the lesser of the two evils. My default position has become that the client should not testify unless I'm convinced that very compelling reasons dictate otherwise. The decision is easier in some cases than others. If the client has prior criminal convictions that can be used against him, it can make keeping him off the stand a no-brainer. If the client comes across as angry, rambling, evasive, weird, etc, it can can be an easy decision. In other cases (such as self-defense or consent), it can be very difficult to present the defense without your client's side of the story. In plenty of other cases, there is simply no clear answer.

Preparation is the key. If you're the type of attorney who just throws your client on the stand in every case to tell their version of the story, you should find other work. In order to make the best decision, you have to prepare your client. If the first time your client faces a hostile adversary is in the courtroom, you haven't done your job as a defense attorney. A competent defense attorney has to find all the holes and inconsistencies in the client's story and attack just as hard as the prosecutor. When in doubt, you might have to put your client through several rounds of mock testimony to determine if he's going to cut it at the moment of truth at trial.

The truth is that I don't have the magic bullet answer. Nobody does. Over the years, I've had cases where clients won solely based on jurors believing their testimony. I've had more cases where the judge or jury rolled their eyes at my client's story. At the end of the day, I think it's dangerous for attorneys to have a hard and fast rule. Anybody who says that defendants should always or should never testify is being lazy. A decision should be made on a case by case basis, and hard work and preparation are the keys to making the best informed call.

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