By Dr. Ken Broda Bahm:
Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin protest, testified. Elizabeth Holmes, on trial in San Jose, California for fraud relating to her company, Theranos, also took the stand. Travis McMichael, one of three men on trial in Brunswick, Georgia for the killing of Ahmaud Arbery as he jogged through a neighborhood, also went on record. That is all in the space of about a week. The common thinking among criminal defense attorneys has been that, whatever might be the benefit of “telling your side of the story,” it generally isn’t worth the risk that comes with an effective cross-examination from the prosecutor. That common calculation, however, might be changing. We will see if the move benefits Holmes or McMichael, but Rittenhouse was acquitted of all charges.
Conventional wisdom, of course, still has a lot going for it. It is little consolation if defendants, after having the chance to make their case, just end up wilting under cross examination or conceding to one or more damning admissions. The right to avoid that situation of self-incrimination, the Fifth Amendment, is there for a reason. At the same time, the attorneys in these and other cases know that they need to make an individual calculation, and the move that may be right in many cases is not necessarily right in your case. That is why it is best to approach your case — criminal or civil — not as a type or a pattern but as a sui generis situation that deserves to be assessed on its own terms. In this post, I’ll share a few thoughts on why the conventional wisdom on defendant testimony, and conventional wisdom generally, isn’t always a foregone conclusion.
Why the Defendant Testimony Convention Might Be Changing
It may be that in our current message-saturated age, juries are less satisfied with relying on the formalities of burden of proof and the right against self-incrimination, and expect to hear from the accused. The nature of defenses can also create an implied or actual burden of proof that might be practically met only through testimony.
It is also the case that many defendants are closely evaluating their options. In the Rittenhouse defense, for example, defense attorney Mike Richards told CNN, “We had a mock jury and we did two different juries, one with him testifying and one without him testifying. It was substantially better when he testified… and that sealed it.” As close as the case was, and with key evidence being kept out by a largely helpful judge, taking the stand seemed the right call for that team. As of press time, the jury is still out on whether testimony helps Holmes and McMichael. It may not swing a tough case, but the question that remains is whether it may help.
How Conventional Wisdom Generally Might Not Fit
In civil cases, there is a wide spectrum of common wisdom and lore: when to admit liability, whether to go on the offense, whether to have an alternate damages figure, whether the client representative should testify, or whether you need an expert. It is wise to examine all of that. What we take to be received wisdom might be invalid, or changing, or simply not applicable to your venue or your case. This is likely to be especially true in an age where there are fewer trials, and where those cases that do make it to a courtroom are for that reason atypical. When trial lawyers also have less regularity to their trial experience, there is a need to check your assumptions. It pays to do what the Rittenhouse team did: test it out. Whether by getting lots of opinions and applying informal sounding boards, or by running more formal mock trials and focus groups, it pays to know as much as possible about your own case. That involves focusing not just on what makes it conventional, but also what makes it unique.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
Other Posts on Good Trial Habits:
- Speak to Familiarity: Jurors Know What They Like, and Like What They Know
- Don’t Practice til You’re Capable, or til You’re Comfortable — Practice til You Can’t Fail
- Don’t Take Analytical Thinking for Granted