Earlier today, Doug Mataconis got frustrated with the Casey Anthony trial analysis on CNN. This is understandable since most TV trial analysis is bad – wrong and dangerous, even. This time, though, I couldn't see what was wrong at all. Here was his tweet:
This was, to him, a head-slapping bit of analysis because, as he tweeted when I wondered what was surprising about the talking head's analysis, the Constitution says, and the jury instructions will make clear, that "no conclusion is to be drawn from someone exercising their rights." When pressed on whether that would really keep juries from drawing their own conclusions, Doug got all philosophical on me and replied "One never knows what a jury thinks, of course".
But are juries really that inscrutable? Are people really that unpredictable? No, I don't think so. I don't care what the law is, I don't care what the jury instructions are, I don't care how it works on TV shows, when a person doesn't testify in their own defense, the jury wonders what they are hiding. Aside from viscerally knowing that this is true, I've served on a jury. While most of what I learned on jury duty isn't germane to this post, the one thing I learned with absolute certainty is that if a juror is aware that a party is keeping information from them, she is going to assume that it isn't helpful to that party's case. And when the judge gives a stern look and says "The jury will disregard counsel's question…" what the juror thinks is "But I want to hear the answer to that question!"
And if that's how the jury reacts to an individual question in a whiplash case, how do you think they react to a trial where one witness after another comes up and calls the defendant a murderer and she doesn't even respond?
This does not mean that the defendant should always testify; in fact, I think the standard belief is similar to keep the defendant off the stand. As bad as it looks to have the defendant say nothing in their own defense, there are worse things than having the jury think "hey, why didn't she speak." There's a saying in football about the forward pass: "There are three things that can happen and two of them are bad." While it is possible that the jury may decide that your client doesn't sound like a murderer, as soon as the cross-examination starts a lot can go wrong in a hurry. The testimony may open the door to the admission of inculpatory evidence that had been previously precluded or the client may come off like a lying asshole to name two big risks.
So what we have is a delicate balance: is the definite, but semi-quantifiable harm from not testifying worse than the possible, but impossible-to-quantify harm that can come from a bad cross-examination? The ability to weigh these options correctly is why good trial lawyers get paid the big bucks.
I don't think there is a single lawyer who would tell you that no balancing is required. Juries aren't that unknowable.
Last 5 posts by Charles
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