By David Zapp, Esq.
A current study was conducted “to better understand how jurors perceive and act toward criminal defendants who do not take the stand in their own defense and under what conditions taking the stand was disadvantageous. The results were clear: jurors do not appear to be influenced by whether or not a defendant testifies.”
“While there was some indication that failure to testify affected some jurors, this influence did not lead to any more adverse outcomes in terms of guilty verdicts. Nor did we find that testifying with a criminal record was particularly disadvantageous. Moreover, and surprisingly, there were no differences in perceptions of defendant aggressiveness even with a previous conviction for assault and battery, the ‘offense’ for which the defendant was theoretically on ‘trial’ for [in the experiment].
“Specifically, the findings suggest that jurors are not overly influenced by extralegal factors, [nature of crime or character, of defendant] and they do not make assumptions about the defendant that are not based on the evidence presented. This study confirms a plethora of jury decision-making research that shows, namely, that jurors perform their duties diligently and in accord with the law.” Shayne Jones & Melissa Harrison, To Testify or Not to Testify-That is the Question: Comparing the Advantages and Disadvantages of Testifying across Situations, 5 Applied.
Commentary
That said I still wonder why a lawyer would not put a client on the stand that makes a good appearance, has no criminal record and has a believable story to tell. I am not talking about a defendant who just simply protests his innocence. That point is made by going to trial. I am talking about a defendant that can fill gaps in the evidence, answer questions raised by the Government’s proof, offer alternative interpretations of conversations or e-mails and simply let a jury know he is a real human being with similar concerns and problems.
Just once I would like to see some poor truck driver from a small town in Colombia, down on his luck, a peripheral figure in a drug trafficking case who is just trying to make a buck with no idea where the drugs he knew he was transporting were going. I would like to hear from the truck driver about his hard scrabble life, his need to support his family, about his family, his kids, his parents and the specific reasons he got involved in the crime. I would like a jury to see more than just a “defendant.”
The big lie that people perpetrate is that jurors cannot be fair, and that is not true, and the research shows it. If you can be fair, why can’t jurors be fair? If you go to trial and you do not testify, it is a shame. If you go to trial and you could have testified, it is a tragedy. Often the best witness is you. Not every defendant can testify. But defendants and their lawyers should not discard the possibility.
And if a defendant loses at trial he can always get the safety valve. Indeed the judge himself may find the testimony sufficient for that purpose. Safety valve testimony can be made “at any time” before sentence. The Holder memo, with its policy of not charging a mandatory minimum sentence charge on peripheral figures, makes that option even more attractive.