In his murder and arson trial in 2007, Justin Chapman decided not to testify in his own behalf. This meant the jury didn’t hear his voice until after it had found him guilty.
Devoted watchers of TV crime shows know this is pretty standard. Legally, the defendant has no obligation to testify. Practically, even an innocent defendant may suffer serious damage on cross-examination by a skilled prosecutor.
Atlanta criminal defense attorney Jack Martin, who has tried numerous high-profile cases, advocates strongly against a defendant taking the stand.
“When the client testifies, it turns the case into whether the prosecution proved its case into whether the jury believes your client,” Martin said. “Typically, you want the jury to answer the first question, not the second.”
A defendant who takes the stand has an almost impossible job, Martin said.
“Even the best actors can’t pull it off,” he said. “Jurors are looking for every little thing. So if the client becomes emotional, the jury will think they’re crocodile tears. If they show no emotion, they can be seen as cold and relentless.”
Martin cited Wayne Williams, convicted in 1982 in the “Atlanta Child Murders” case, as a prime example of the perils of putting your client on the stand.
Under direct examination from his own attorney, Williams came across as a “mild and geeky guy,” Martin said. But under cross-examination from the prosecutor, Williams lost his cool and became angrier and angrier.
“The jury saw a person who could be prone to violence,” Martin said.
Allowing a defendant to testify on his or her behalf can be just as dangerous for someone who’s innocent as it is for someone who’s guilty, Martin said.
“The innocent person doesn’t know what happened, so sometimes it’ll look like they’re hiding something. The guilty person knows exactly what happened and can contrive an explanation.”
The judge instructs the jury not to draw any conclusions from a defendant’s decision not to take the stand. But the jurors, being human, still wonder about that. They may put themselves in the defendant’s place and conclude that they would take the stand in their own defense.
Here’s how Gary Asteak, a defense attorney in Easton, Pa., put it while talking with NPR after the 2012 sex abuse trial of former Penn State assistant coach Jerry Sandusky.
“The jurors had an opportunity to sit and determine the credibility of all of the witnesses against Sandusky. Sandusky’s been sitting there at counsel table. They’ve had an opportunity to observe him, watch his physical demeanor. But human nature says, if you’re innocent, you should profess your innocence. If you didn’t do it, you should look me in the eye and say: I didn’t do it.”
Sandusky didn’t testify. He was found guilty on 45 of 48 count of sex abuse. The reader is instructed not to form any conclusions about whether his decision not to testify had any bearing on the verdict. Kidding! Some legal analysts said the decision not to take the stand was disastrous; others said putting the serial child molester up to testify could have been even moreso.
And that’s another consideration. The defendant may insist on testifying, but a poor performance on the stand can punch a hole in the defense below the waterline.
Hankins, Chapman’s public defender, said if a client doesn’t absolutely need to take the stand, you’re better off not putting him there.
“Keep in mind, a trial is a live performance, if you will,” she said. “You can’t always predict what the DA is going to ask them. You can’t predict their answers.”