The Risk of Remaining Silent

Tom Kirkendall reported in Houston's Clear Thinkers the defense team in Conrad Black's white collar criminal trial announced the defendant had elected not to testify:

The Black's defense team strategy in holding Black off the witness stand is risky. As Martha Stewart and Jamie Olis learned the hard way, jurors in white collar criminal cases expect to hear the defendants explain why the government's charges are not true. When the jurors do not hear from the defendant, no jury instruction will ever remove the seeds of doubt from the jurors' minds that the defendant is trying to hide something. Granted, as Jeff Skilling and Ken Lay experienced, testifying in one's own defense certainly does not assure a successful defense. Likewise, the courtroom dynamics of each trial are different, so those in play in the Black trial courtroom may favor Black staying off the stand. But as the late Edward Bennett Williams used to advise his white collar criminal clients, "If you elect not to testify, then you better bring your toothbrush with you to the courthouse." Inasmuch as the government's case in the Black trial appears to be extraordinarily weak, here's hoping that the Black defense team's decision to keep Black off the stand does not come back to haunt them.

The right to remain silent is a right of constitutional dimension protected by both the United States and Texas Constitutions. Why does such an important right need protection? Because our human nature assumes the worst in people when they don't explain their actions.

In trial after trial I have spoken with prospective jurors who want to hear the defendant's side of the story. However, there is great risk in calling the client to the stand during trial, especially when the client might be impeached with prior convictions or a prior inconsistent statement. Nonetheless, lawyers must sometimes call the client in order to explain evidence or assert a defense.

However, as Tom Kirkendall commented, it is a risky strategy to keep the accused off the witness stand, too. This is especially true in trials like Conrad Black where jurors are prone to believe the defendant is hiding something and consequently use that against them.

It is often a difficult decision for the trial attorney whether to call the client as a witness and subject them to cross-examination. So, I'll echo Tom's thought and say here's hoping the Black defense team's decision to keep Black off the stand does not come back to haunt them.