When the defendant does not testify

[Casey Simpson]

So you don't put your client on the stand for a few good reasons. First, he has a right against self-incrimination. The burden of proof is on the prosecution in accordance with the US Constitution. Therefore, the prosecution cannot call the defendant to the stand to testify. However, he may testify in his defense if he chooses, though is lawyer will not call him unless his testimony, naturally, is in some way helpful to his defense. Simply that a defendant does not testify does not mean much; only that he didn't need to because either the prosecution's case is sufficiently weak that his testimony is not needed, or he has a history which the prosecution can as him about. Moreover, even if he has no history, the prosecution can cross-examine him after his direct examination by his own lawyer. He cannot simply answer the good questions asked by his lawyer without being crossed by the opposition. That's it. CNN will take two days to explain this and still get it wrong. But its my field. I know this.

 

[Pleistarchus]

Is this regarding the "Zimmerman trial? If so, I have been intrigued by it and found it bizarre that the judge yesterday insisted that George Zimmerman himself had to answer whether or not he will be taking the stand. If a defendant has the right to remain silent how can a judge require him to answer that question? Nevertheless, have learned incredible amounts of information from this trial and looking forward to the end even though I find him to be innocent according to the overwhelming evidence provided, but believe this case to be politically and racially motivated and driven, thus would not be surprised with a guilty verdict.

 

[40xs]

I don't blame Zimmerman for not taking the stand. Look how lawyers make rape victims appear, as if they asked for it. How people are treated on the stand is the reason a lot of rapes go unreported. It's hard to out wit a trained trial lawyer. I wouldn't answer their damned questions either.

 

[EddieNFL]

What the swabbie said.

 

[David S]

Actually, it's pretty standard for a defendant in a criminal case not to take the stand, isn't it? Casey will correct me if I'm perpetuating another legal wive's tale, but my understanding is that when the defense does that, it's a sign they're nervous about their case. Does it help sometimes? Of course, but I'm told the default is for the defendant to stay put.

Yours,

David

 

[pawprint2]

" But its my field. I know this. "

Question: Say I'm on trial for something. I choose not to testify, but I play and interview that I did with a talk show host. How does this work? Am I somewhat testifying, but without cross examination? Thanks.

I'm not sure talking to a talk show host, while not being under oath-or facing any criminal penalty for not telling the truth is exactly the same as testifying under oath in a criminal trial. I'm pretty sure you would not be Testifying, but rather making a statement to a talk show host. Talk show hosts hold no special place under our Constitution, talking to a talk show host isn't any different that talking to the UPS driver-unless the Judge has issued a GAG order, I believe you can talk to anyone you want to. If you were accused of robbing a 7-11 and there was a video tape of you talking to a talk show host, and the tape was made during the robbery-you happen to be 50 miles away-and the tape showed you were 100% not guilty, should this tape be allowed in to the jury, as you are not going to be cross examined on the validity of the tape/times/etc.? I believe we need to look to our Constitution for guidance on all matter like these, we should always strive to follow to the best of our ability the Constitution, for if we do not, we are no longer America. I hold dear all of the Bill of Rights-to include the 5th.

 

[pinsandpitons]

I believe we need to look to our Constitution for guidance on all matter like these, we should always strive to follow to the best of our ability the Constitution,....

Well said. The 'not under oath' part of the talk show interview is the other critical point here I think. I don't think (i'm not a layer though) many judges would allow a taped statement to be made admissible. It's not illegal to lie about yourself. Innocent until proven guilty, the 5A is probably one of the most important and least understood (these days) of the original ten.

I'm also very interested in this case. Did he defend himself? It appears so, but the interesting question to me, and the reason I care at all about this case is what the jury thinks about him following and confronting someone within the definition of 'stand your ground'. Going back to the constitution, at issue in my eyes are Martin's 4A rights, and Zimmerman's 9A rights. Anyway, there are some interesting facets to this case (from what I know of it) and I could see it going either way verdict-wise. What's going to make it interesting is HOW the jury decides guilty or not guilty.

 

[leagle2]

If offered into evidence by the defense, the defendant's statement to the talk show host is inadmissible hearsay if it is being offered to prove the truth of the matter asserted ("I didn't do it" or "I shot him because I was afraid") The same statement, if offered by the State, is the statement of an opposing party and therefore, by definition, is not hearsay. Generally speaking the prosecution isn't going to want to put that before a jury unless it is being used for some purpose like showing that the defendant has told conflicting stories.
The taped statements admitted in the Zimmerman trial were made to the police and were offered into evidence by the State. Obviously the State wasn't trying to prove that he acted in self defense but rather to show the jury his rather calm demeanor and that there were inconsistencies as well as facts that the State believed it could disprove. The defense was glad for the State to play the tapes because it got the defendant's version in front of the jury without him ever having to say a word in court.
I would disagree with David S. about the failure to testify being some indication of nervousness about the defense's case. There are any number of reasons that you might not have a client testify but it also signals that the defense is confident that the State has failed to make its case. The burden of proof weighs heavily upon the State. I tell my clients "While it is your butt that is in a sling, it isn't you that is on trial. What is on trial is the State's case against you. A judge or a jury doesn't judge a defendant, it judges the strength of the State's case. The jury in the first OJ Simpson trial didn't say that he didn't kill his wife and the waiter. It said "California didn't prove it to us beyond a reasonable doubt". I point out to a jury to be aware that at some point the prosecutor is going to ask you "Do you believe our witness or do you believe the defense witness?" When in fact the question, in a criminal case, really is "Do you believe our witness, beyond a reasonable doubt?". Putting the State's case on trial is why police officers and victims often feel that they are on trial.

 

[pawprint2]

I for one am glad the trial is over and just the deliberations are left. I was worried that the prosecutor would quit his job 1/2 through the trial claiming, "he's received threats to himself and his family" or some other cowardly stunt, thank God that didn't happen! What's worse, there would be some low life, cowardly creeps defending his quitting!

 

[David S]

I would disagree with David S. about the failure to testify being some indication of nervousness about the defense's case. There are any number of reasons that you might not have a client testify but it also signals that the defense is confident that the State has failed to make its case. The burden of proof weighs heavily upon the State.

Hi leagle2,

That's a very helpful , informative post. Just to clarify, though--my understanding was that it's a (small) sign of nervousness when the defense does put their client on the stand, and that for just the reasons you cited (I plead guilty to sloppy, ambiguous use of pronouns in my prior post). I always thought that for the defense, you don't put your client up there unless you think you need to. No?

Anyway, I am glad the whole thing is almost over. Hopefully once the verdict is in, the cable news services will drop their obsession with it.

 

[leagle2]

Sorry, I misunderstood. Sometimes you have no choice in putting the defendant on,as when the only one who can cast doubt on the State's witness is the defendant. That being said, if it isn't necessary to call the defendant, quit while you are still ahead. There have been so many televised "trials of the century" where the defendant hasn't testify that I don't think that juries hold not testifying against the defendant anymore.

 

[Unknown]

When the judge asked Zimmerman if he was going to testify, he should have said "Under the 5th amendment, I reserve my right to remain silent", or, "No decision has been made. I will consult with my attorney's prior to answering." When the judge pressed him for an answer about how much time he would need, he could again say "No decision has been made. I will consult with my attorney's prior to answering."

 

[LanceS4803]

Huge mistake by the prosecution to show to Hannity interview. They basically allowed Zimmerman to "testify" without the benefit of cross examining him. Now, the jury has seen Zimmerman give his side of the story.
In trials I have had (Fed LEO), we always plan on the defendant testifying, but most don't, and the judge gives a jury instruction about it not being an indication of guilt that they don't take the stand in their own defense.

 

[JelloStorm]

I think George is SCREWED. Jury is now asking about the Manslaughter charge. I do recall hearing that while that sounds like a lesser charge, the jury doesn't know it'll basically lock him away for life anyway.

We need dashcams on our fucking guns anymore in this day and age. What ever happened to common sense?

 

[Foul Mike]

At the closing of the trial, why does the prosecution get to go twice?
The prosecution talks a while then the defense talks a while then the prosecutor can go back over the defense but the defense can't have another shot?
That does not seem fair to me. I think they both should be able to go twice. Maybe I am wrong. Regards, FM

 

[Onemoretime]

Some one please explain to me how this qualifies as Manslaughter.

 

[3wide]

Some one please explain to me how this qualifies as Manslaughter.

Looks like a witch hunt they just want to convict him of something.

Btw, how is a jury of 6 women, a jury of your peers?

 

[JelloStorm]

Some one please explain to me how this qualifies as Manslaughter.

I'd get banned if I tried to explain it.

 

[JelloStorm]

Not guilty!

 

[3wide]

Justice prevailed...

Although so much for innocent until proven guilty if you spend that time in jail....

 

[leagle2]

The prosecution, because of the burden of proof, has an opportunity to offer a rebuttal to the defense closing argument. In theory the prosecutor is limited to addressing only the defense's argument without raising any new arguments.

One only need watch the testimony of the police officers to understand that, in the final analysis, the State's Attorney's decision to prosecute ignored the facts and these charges were brought for political reasons. There was not a scintilla of evidence that this was Murder 2. I believe that that charge was brought only so that a jury could "compromise" on Manslaughter. The prosecution knew from the start that if it was an "all or nothing" decision they would lose.

I'm generally not a fan of Fox or CNN but the absolute best commentary I've read is

We never should have witnessed a Zimmerman trial | Fox News

 

[Foul Mike]

leagle2 Thanks for the explanation When I was on jury duty I noticed it and objections, sustained etc. and felt it was not fair.

Correct verdict. Should never have been in the courthouse. Sad to see our Justice system juked up to this point. Regards, FM

 

[pinsandpitons]

Hey Leagle2, why were there only 6 jurors? Is FL different or does it have something to do with the charges, or the type of trial? I dunno, I guess I thought there were supposed to be 12.

 

[leagle2]

Florida is different. Only 6 jurors in a non capital case. 12 in a capital.

 

[John-K]

the State's Attorney's decision to prosecute ignored the facts and these charges were brought for political reasons. There was not a scintilla of evidence that this was Murder 2. I believe that that charge was brought only so that a jury could "compromise" on Manslaughter. The prosecution knew from the start that if it was an "all or nothing" decision they would lose.

I'd bet the State was bluffing with the charges, hoping he'd plead down. When he didn't, they were stuck trying to convince a jury.

The whole thing was completely political, and it backfired badly. I find it really sad that the Media and Politics have such a pull on the Legal system lately. Thankfully the legal system worked, but at a great cost to Zimmerman, the Taxpayers of FL, and race relations throughout the country.



-John