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Should you put your client on the stand? July 19, 2009

Posted by jefhenningeresq in My Cases.
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I hear too many attorneys say that they will never put their client on the stand to testify.  As the old saying goes, never say never.  In this article, I will discuss the reasons why some attorneys have this fear, why you should consider putting the client on and then break down the analysis that you should undertake when making this crucial decision.

Why are some attorneys so afraid?

In my opinion, many attorneys have a defeatist attitude when it comes to trial.  This is probably due, in large part, to the attorney’s lack of confidence in their own skills.  Just watch some attorneys during trial when they go on and on about meaningless points that have nothing to do with the theme of the case.  Those attorneys clearly have no plan and thus, they probably fear just about every aspect of the trial as they have no control.

Think about it this way.  What are you more comfortable with:  something you are skilled at or something you have never done before?  Or how about something you are prepared for and something that you are surprised with?  If you have confidence in your trial skills and you are prepared, than you should be very comfortable during the trial. 

When you have comfort with your trial plan, you should be able to clearly analyze all strategic decisions that will come up during the trial including whether or not your client should testify.

Some attorneys are also afraid of a client’s  prior record.  Of course, if it is a mile long, then you will have some serious problems.  If it is one or two incidents, you should look into how you will deal with it especially if it is an old conviction.

Why should your client take the stand?

One of the primary reasons for putting your client on the stand is that the jury wants to hear from him.  I don’t care what the judge says about the right to remain silent.  The jury wants to hear from your client because they are thinking, if this was me, I would talk.  After all, what does he have to hide?

Another great reason is that the prosecutor will probably have little to no idea what your client will say.  Thus, it will be extremely difficult to cross examine on the fly as prosecutors are rarely great at cross.  If the prosecutor fails to call anyone to rebut a key point your client made, you have to tell the jury during summation that the prosecutor did not refute your client’s testimony. 

Your client also has an advantage that no other witness has.  He was there for all of the testimony.  Thus, his testimony can be “shaped” to respond to all other witnesses.  Of course, I do not advocate perjury, but creative use of adjectives is vital.

In some cases, especially white collar crime cases, your client may be the only person that can tie up the entire story.  Without him, you have no case.  Thus, taking the attitude that you should never put your client on the stand is just stupid thinking that can be malpractice in certain situations.

Should you put your client on the stand?

Everything you do at trial should have a purpose, and I do mean everything.  So, when deciding whether or not to put your client up there, you first have to answer the why question.  What is the purpose in having him testify?  Is it really necessary to the defense? 

Whether or not testimony will add anything to a defense depends largely on whether or not the jury has already hear your client’s version of the events.  While an exculpatory statement will rarely be presented to a jury, you may have a statement by your client that is not really harmful to the defense.  For example, if a self defense case, your client may detail the reasons that he stabbed the victim.  In that case, there may be little reason to subject your client to cross examination when there is little to  add.

On the other hand, if your client has not made a statement, the jury will probably need to hear your client’s version.  If your client made a damaging statement and you are still going to trial, your client must explain why he said what he said and what the real story is.

You also have to determine how your client will come across  to the jury.  Sometimes, this is a total crap shoot.  Quite often, your client will say something that comes out of nowhere or will act totally different than what you have seen in the past.  In other words, the way your client comes across in your office will be different than how he is when he is in the hot seat.  Thus, a margin of error has to be built into your analysis.

You must prepare your client so he knows the case and his testimony cold.  Only then will you really have a client for how your client will perform at trial.  In addition, its not just what you say but how you say it.  Thus, I try to stay away from a script and focus more on the general story with an extra focus on key topics.

Prepping your client for cross examination should be pretty easy to do.  Most prosecutors use the same lazy cross examination that consists mostly of yelling at the client.  You have to put on your prosecutor hat and look at every damaging piece of evidence or hole in the case.  Then, you have to discuss these issues with your client and get his side of the story.  Only then should you give further advice on how to handle those issues first talking in the general sense and then the specific sense. 

 Some of these issues can be dealt with on direct and the others should be left for cross.  If you deal with an issue on direct, the purpose is to take the “sting” out of it and explain it away.  However, you don’t want to make this obvious to the jury.  Try to work it into the story.  With everything else, wait for it.  Nothing takes the wind out of a prosecutor’s sails when they think they are about to land a knock out punch only to find out that they just stepped in it.

One such issue that should be dealt with on direct is a client’s prior record.  Again, I assume that it is not a mile long.  Most states limit how much the prosecutor can ask or else the prior record evidence becomes 404(b) evidence.  Thus, you should be able to keep the details vague.  But again, you should do everything you can to try to work this into the story.  Otherwise, it will be obvious that you are asking it for a reason. 

Due to the relationship you have with your client, it can be difficult to simulate a real cross examination experience if you also do the cross. Thus, get another attorney to do it for you.  Write out all of the questions for the attorney and have them lay it on thick.  Then, you can discuss the results with your client and make changes as necessary.

Once you complete this analysis, you will know why you are putting your client on, what they will say, how they will handle the Prosecutor’s cross and how they will come across in front of the jury.  When you are this prepared, you can then make an intelligent choice as to whether or not you should put your client on the stand.  Of course, I know this is the client’s decision, but let’s be honest, almost all of them will do whatever we tell them to do.

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