By MICHAEL TARM AP Legal Affairs Writer
CHICAGO (AP) – Defendants have spoken directly to jurors in a series of recent high-profile trials, challenging conventional wisdom that the risks of speaking out generally 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 his gun for a Taser.
Another was Kyle Rittenhouse, who was acquitted of the murder last month for shooting three protesters in Kenosha, Wisconsin, killing two and injuring a third.
The series of accused testimonies begs the question whether a change in mindset is taking place among lawyers, many of whom have long viewed taking clients to the bar as a desperate and last resort option.
ARE MORE DEFENDANTS TESTIMING?
For the record, there may be an indication of this.
“There has been a wave of defendants on the stand – and it’s a break from tradition,” said Alan Tuerkheimer, Chicago-based jury consultant.
He speculated that defendants are more likely to speak out in the age of social media, when people post or read public comments on everything. It may also have changed jurors’ expectations.
“There seems to be this growing expectation (among jurors) that if an accused is tried, he has to fight for himself and tell his story,” he said.
Former federal prosecutor Phil Turner has said he’s not convinced lawyers are broadly changing their gloomy views on client testimony.
“I would like to see a lot more essays to tell,” he said.
WHAT OTHER RECENT TRIALS HAVE THE DEFENDANTS TESTIMONY?
Actor Jussie Smollett testified at his trial in Chicago this month, telling jurors he had told the truth about being the target of a racist and homophobic attack. A few days later, jurors found him guilty of lying to the police.
Much like Travis McMichael, a white man who shot dead Ahmaud Arbery, a black man, as Arbery walked empty-handed through a Georgia subdivision. He and two co-defendants were subsequently convicted of murder.
>>> SEE THE TRIAL ON DEMAND: GA c. McMICHAEL, et al. (2021)
Former Theranos CEO Elizabeth Holmes testified for seven days in November during her fraud and conspiracy trial in California. His jury is still deliberating.
Potter testified last week, sobbing as he described his horror at realizing that she had shot Wright during a traffic stop.
ARE THERE ANY STUDIES ON DEFENDANT TESTIMONY?
There is no recent data on the percentages of accused nationwide who have chosen to testify. It will take years to compile. And studies of the testimonies of the accused are rare.
A 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. Of those defendants who chose not to testify, approximately 72% were convicted.
A 1950s study by Harry Kalven and Hans Zeisel found that defendants without a criminal record testified more than 90% of the time and those with a criminal record testified approximately 70% of the time.
Defendants with records are more reluctant to testify for fear that this will allow prosecutors to expose the extent of their criminal past to jurors. High-level defendants who testified recently had no criminal records or minimal criminal records.
WHAT INCLUDES THE RECENT DECISIONS TO BE TESTIMONIAL?
Rittenhouse and McMichael both claimed self-defense, so their states of mind during the shootings were central to their trials. They had little choice but to testify as only they could tell the jurors what they thought and felt.
Rittenhouse explained that he feared for his life, collapsing at the stand as he described a protester he shot while charging at him. McMichael told jurors he was forced to open fire, alleging that Arbery attacked him and grabbed his shotgun.
>>> WATCH ON-DEMAND TRIAL: WI vs. RITTENHOUSE (2021)
While it was not as crucial to their trials, Holmes and Potter also testified to their states of mind.
Holmes said she never intended to fool anyone about blood testing technology her startup called groundbreaking and that she sincerely believed the company could make it work.
Potter told jurors that she was overcome with fear just before shooting Wright because she believed he was about to leave 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. When asked how he thought Smollett did at the booth, Turner replied, “It was a disaster.”
WHAT ARE THE RISKS TO TAKE A POSITION?
The greatest risk is that by testifying, defendants face potentially devastating cross-examination.
Prosecutors seek to shake up the defendants or catch them lying, or to make them get angry or blurt out something incriminating.
During his trial, Rittenhouse made no obvious mistakes. But McMichael undermined his case during a difficult questioning, admitting that Arbery had neither verbally threatened nor brandished him.
One defendant whose lawyers likely concluded the risks of testifying were too great was Ghislaine Maxwell. The British socialite, who is accused of recruiting teenage girls for financier Jeffrey Epstein, did not testify during her sex trafficking trial in New York. No verdict has been rendered.
ISN’T THIS ALSO TAKING THE RISK POSITION?
It can be.
Jurors are not expected to remain silent about an accused during a trial against them. And prosecutors are prohibited from citing a defendant’s decision not to testify as proof of his guilt.
But Tuerkheimer said that even with instructions from a judge not to do so, some deliberating jurors are likely to take into account an accused’s decision not to testify.