Criminal Defendants Should Stop Being Potted Plants

EDWARD PALTZIK - The recent federal corruption convictions of former New York State Senate Majority Leader Dean Skelos and former Assembly Speaker Sheldon Silver underscore an increasingly evident fact: criminal defendants do not testify frequently enough in their own defense.  I have represented numerous criminal defendants both in state and federal court, so I am well aware of the downsides of defendants testifying, not to mention the conventional wisdom about doing so within the defense bar.  However, if the end result is a conviction and prison sentence, then conventional thinking must be re-examined.

“Innocent until proven guilty” is a basic legal canon and part of our cultural ethos.  The Constitution requires the prosecution to prove guilt beyond a reasonable doubt, and it doesn’t require criminal defendants to testify or otherwise prove their innocence.  Thus, jurors are instructed not to infer guilt from a defendant’s failure to testify.  But in the real world, theory is often trumped by human nature.  In the courtroom, legal standards, theoretical rules, and a judge’s instructions don’t always carry as much weight as intuition, credibility, and likeability.

Most criminal defense attorneys believe that a defendant should be kept off the witness stand at almost all costs.  They are content to rely solely on their cross-examination of prosecution witnesses without presenting any defense case, arguing that guilt beyond a reasonable doubt has not been proved. 

Of course, a lot can go wrong when a defendant testifies.  Prior bad acts, criminal convictions, or inconsistent statements can undermine the defendant’s credibility.  Both judge and jury may deem the testimony self-serving and/or untruthful, leading not only to a conviction but also a harsher sentence.   

Yet, the risks of defendant testimony must be weighed against the reality that jurors are human beings who, in all likelihood, will view a defendant’s failure to testify negatively.  Jurors are often of the opinion that an innocent defendant would proclaim as much on the stand.  Cowering at the defense table and speaking through the voice of a lawyer - whom jurors are predisposed to disbelieve - is a recipe for conviction

Sometimes the defendant is boxed in by the evidence and has no choice but to remain off the stand.  Moreover, there are some well-publicized exceptions to my argument, like the recent surprising acquittal in Vincent Asaro’s “Goodfellas” trial.  But too often the defendant is kept on the sidelines because attorneys can’t escape the prison of conventional thinking and fear being second-guessed if their client testifies and is still convicted. 

In the case of Skelos and Silver, maybe their fates were sealed no matter what defense strategies or courtroom tactics their attorneys utilized.  But that only creates a stronger case for testifying in one’s defense.  Like so many other high-profile white-collar defendants in finance and politics who matched up against Preet Bharara, the formidable U.S. Attorney for the Southern District of New York, Skelos and Silver’s defenses rested on the idea that the government failed to prove its case rather than giving the jury an alternative story to believe.

It’s always easy to second-guess from afar, as I am doing now.  However, the defense bar’s fear of losing boldly has allowed federal prosecutors to score lay-up after lay-up.  The bottom line is losing is still losing, which, in the criminal context, means someone’s freedom.  Defense attorneys should start to recognize that a robust strategy entails more than just telling jurors about the presumption of innocence and reasonable doubt.  Some circumstances demand that clients stand up and proclaim their innocence, conventional wisdom be damned. 

Edward Paltzik is a litigation Partner at the law firm Joshpe Law Group LLP. He has tried numerous criminal and civil cases in state and federal court.