EXPLAINER: Are more defendants testifying at trial?
CHICAGO — Defendants spoke directly to jurors in a series of recent high-profile trials, defying conventional wisdom that the risks of taking the stand usually outweigh the benefits.
Among those who chose to testify was Kim Potter, convicted Thursday of manslaughter for killing Daunte Wright during a traffic stop when the Minnesota police officer mistook her gun for a Taser.
Another was Kyle Rittenhouse, who was acquitted of murder last month for shooting three protesters in Kenosha, Wisconsin, killing two and wounding a third.
The run of testifying defendants raises the question of whether a shift in thinking is occurring among lawyers, many of whom have long regarded putting clients on the stand as a desperate, last-resort option.
ARE MORE DEFENDANTS TESTIFYING?
Anecdotally, there may be some indication of that.
“There has been a spate of defendants taking the stand — and that is a break from tradition,” said Chicago-based jury consultant Alan Tuerkheimer.
He surmised that defendants are more prone to speak in the age of social media, when people post or read public comments on everything. That may have altered jurors’ expectations, too.
“There seems to be this growing expectation (among jurors) that if a defendant is on trial — he or she should fight for themselves and tell their story,” he said.
Former federal prosecutor Phil Turner said he wasn’t convinced lawyers were changing their dim views overall about clients testifying.
“I would want to see a lot more trials to tell,” he said.
AT WHAT OTHER RECENT TRIALS HAVE DEFENDANTS TESTIFED?
Actor Jussie Smollett testified at his Chicago trial this month, telling jurors he told the truth about being the target of a racist, homophobic attack. Days later, jurors convicted him of lying to police.
So did Travis McMichael, a white man who fatally shot Ahmaud Arbery, a Black man, as Arbery ran empty-handed through a Georgia subdivision. He and two co-defendants were later convicted of murder.
Former Theranos CEO Elizabeth Holmes testified for seven days in November at her fraud and conspiracy trial in California. Her jury is still deliberating.
Potter testified last week, sobbing as she described her horror at realizing she had shot Wright during a traffic stop.
ARE THERE STUDIES ON DEFENDANT TESTIMONY?
There’s no recent data on percentages of defendants nationwide who have chosen to testify. That’ll take years to compile. And studies on defendant testimony are few and far between.
One study of over 300 criminal trials published in the Cornell Law Review in 2009 found that some 77% of defendants who testified were found guilty. Among the defendants who chose not to testify, around 72% were convicted.
A 1950s study by Harry Kalven and Hans Zeisel found that defendants without criminal records testified over 90% of the time and those with criminal histories testified around 70% of the time.
Defendants with records are more reluctant to testify out of fear it’ll enable prosecutors to expose the extent of their criminal pasts to jurors. The high-profile defendants who testified recently had no criminal records or minimal ones.
WHAT ACCOUNTS FOR THE RECENT DECISIONS TO TESTIFY?
Both Rittenhouse and McMichael claimed self-defense, so their states of mind during the shootings were central to their trials. They had little choice but to testify since only they could tell jurors what they were thinking and feeling.
Rittenhouse conveyed that he feared for his life, breaking down on the stand as he described a protester he fatally shot charging at him. McMichael told jurors he was forced to open fire, alleging Arbery attacked him and grabbed his shotgun.
Although it wasn’t as crucial to their trials, Holmes and Potter also testified about their states of mind.
Holmes testified that she never intended to dupe anyone about blood testing technology her startup touted as revolutionary and that she sincerely believed the company could make it work.
Potter told jurors she was overwhelmed with fear right before she shot Wright because she believed he was about to drive off with another officer partially inside his car.
In Smollett’s case, it’s unclear what he thought he would gain by testifying, especially amid overwhelming evidence that he faked an attack on himself.
Turner said Smollett’s lawyers may have tried to talk him out of it.
“But a lot of times, lawyers don’t control their clients,” he said. Asked how he thought Smollett did on the stand, Turner answered: “It was a disaster.”
WHAT ARE THE RISKS OF TAKING THE STAND?
The biggest risk is that, by testifying, defendants open themselves up to a potentially devastating cross-examination.
Prosecutors seek to rattle defendants or catch them in lies, or to provoke them into losing their temper or into blurting out something incriminating.
During cross at his trial, Rittenhouse made no obvious blunders. But McMichael undermined his case under tough questioning, admitting that Arbery neither threatened him verbally nor brandished a weapon.
One defendant whose lawyers likely concluded the risks of testifying were too great was Ghislaine Maxwell. The British socialite, who is charged with recruiting teenage girls for financier Jeffrey Epstein, didn’t testify at her New York sex trafficking trial. No verdict has been reached.
ISN’T NOT TAKING THE STAND RISKY, TOO?
It can be.
Jurors aren’t supposed to hold a defendant’s silence at trial against them. And prosecutors are barred from citing a defendant’s decision not to testify as evidence of guilt.
But Tuerkheimer said that even with instructions from a judge not to, some deliberating jurors likely do factor in a defendant’s decision not to testify.