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July 15, 2023 Criminal Justice Matters

The Accused’s Decision to Testify

J. Vincent Aprile II

The media coverage of the recent criminal trial of Alex Murdough caused many, both lawyers and nonlawyers, to comment on Mr. Murdough, the defendant, taking the stand and testifying on his own behalf. Those media contributors spouted many litigation myths and misunderstandings about whether a criminal defendant should testify at his own trial. The following will not address Murdough’s decision to testify, but only general factors that impact an accused’s decision to testify in any case.

Initially, it must be remembered that the decision as to whether an accused should testify at trial is ultimately the client’s decision, not the accused’s lawyers. It has been “recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case,” including “whether to . . . testify in his or her own behalf.” Jones v. Barnes, 463 U.S. 745, 751 (1983). See Standard 4-5.2(b)(vi), Control and Direction of the Case, ABA Criminal Justice Standards for the Defense Function, 4th ed. (2017), American Bar Association. The defendant’s ultimate decision on testifying should only be made “after full consultation with defense counsel.” Id.

It is well established that defense counsel may neither prohibit the accused from taking the stand on his own behalf nor force the accused to testify over the client’s objections. As a result, criminal defense attorneys may not ethically insist that the prospective client waive a defendant’s federal constitutional right to make the ultimate decision on testifying and delegate that responsibility to the lawyer. After a full and complete consultation with a client about the ultimate decision on testifying being the accused’s, the defendant may agree to follow the lawyer’s advice on testifying, but that delegation could never be irrevocable. That decision would always be subject to revision by the client.

Although some commentators have claimed that when a defense lawyer announces within the jury’s hearing that the client has elected to testify, this is a signal that the client is testifying contrary to the lawyer’s advice. This is not necessarily a reasonable surmise. A defense lawyer may simply want the record to reflect that the decision to testify is the accused’s ultimate decision, as is required by law. Although this same information could be communicated at the bench out of the jury’s hearing, the defense strategy of stating this for the jury to hear may be calculated to impress upon the jurors that the accused could have remained silent, but the defendant himself chose to take the stand to provide his account or any information only the accused could relate.

Some defense counsel may want the trial judge, out of the presence of the jury, to determine that the defendant, with full awareness of the client’s ultimate authority to decide whether to testify, has made this choice to take the stand or not to testify. Often a convicted defendant will raise in a post-conviction proceeding that he or she was forced to testify by defense counsel over the client’s protestations or denied the right to testify by counsel. Such an on-the-record clarification would be helpful in the event of a post-conviction disagreement between lawyer and client on that issue.

Commentators and defense lawyers preach that having the accused testify is a desperation tactic. But this is not a logical maxim. An “accused’s decision whether to testify ‘seldom turns on the resolution of one factor.’” Luce v. United States, 469 U.S. 38, 42 (1984) (quoting New Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting)). The defense must have a theory of the case that focuses on the relevant facts, the controlling law, and the dominant emotion of the defense. Is the defendant’s testimony the only way to present a significant factual aspect of the defense?

When the legal basis of the defense is self-defense, in most situations the accused’s testimony may be the only, or at least the most persuasive, way to communicate the defendant’s fear that motivated the infliction of injury or death on the alleged victim. Nevertheless, counsel has the obligation to determine whether other evidence exists that would be as persuasive on the question of the accused’s fear as the client’s testimony.

Defense counsel has the duty to explain the benefits and disadvantages of the accused testifying, including any viable alternatives. Is there a video recording of the incident that dramatized the accused’s moment of fear? Is one or more eyewitnesses available to validate the accused’s manifested fear? Would an expert witness’s testimony on the psychology of fear be admissible to buttress the self-defense claim? Will the prosecution have to introduce the accused’s statement to the police, which may adequately document the defendant’s fear when the incident occurred? It may be that these strategies should be used along with the accused’s testimony, but those approaches may constitute an adequate alternative to calling the accused to testify. The defendant must be advised of all available alternative strategies to the accused taking the witness stand.

Another misconception is that factors unique to the accused will be raised on cross-examination by the prosecution, devastate the defendant as an effective witness, and further incriminate the accused. Undoubtedly, that possibility must be carefully analyzed, but counsel must consider strategies to minimize or erase that danger. In the case of a prior felony conviction, voir dire may determine to what degree jurors are willing to forgive an unrelated past crime or commit to follow limiting instructions that preclude the use of that conviction as evidence of guilt. This strategy also requires the defense to propose and have accepted a clear and easily comprehended limiting instruction on this point. Counsel should also determine whether any prosecution witness will have a prior conviction or other form of impeachment that will generate a limiting instruction if raised by the defense. The ability to juxtapose an impeachment/credibility instruction regarding a government witness with a similar instruction on the accused may minimize in the jury’s mind the damaging effect of the impeachment of the defendant by a prior felony conviction or other mode of contesting credibility.

Again, each case is different, and even with a variety of strategies to minimize the damage of the prosecution’s cross-examination, counsel may recommend the accused not testify. It must, however, be remembered that, “[i]n fact, the most important witness for the defense in many criminal cases is the defendant himself.” Rock v. Arkansas, 483 U.S. 44, 52 (1987). “[A]n accused’s right to present his own version of events in his own words” is fundamental. “A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Id.

As a matter of federal constitutional law, “the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.” Brooks v. Tennessee, 406 U.S. 605, 613 (1972). Although the accused makes the ultimate decision whether to testify, when to call the defendant in the presentation of the defense case is counsel’s ultimate decision. Conventional wisdom suggests that the accused be the last defense witness. The recency effect is a cognitive bias in which information that came last is remembered more clearly than that presented earlier. The recency effect suggests having the defendant be the last witness would have maximum persuasive impact. Also, by calling the defendant last, the defense will have heard not only all of the prosecution’s case but all of the defense witnesses. This will allow defense counsel to tailor the direct examination of the defendant to close any rgaps in the defense due to deficiencies or revelations in prior witnesses’ testimony.

Despite the strong reasons for having the accused testify last, a defense theory may justify having the defendant testify first or at a place other than as the last witness. The primary effect or first-impression bias is the tendency for information presented first to be better learned or recalled than material presented later in the sequence. In some cases, having the accused testify first, to introduce the defense case, may be important. The defense theory of the case may benefit from having the accused swear to his innocence and set out the narrative first so that subsequent defense witnesses will corroborate the accused’s account of the matter. There is no hard and fast rule to govern this choice. The decision should be made with a full appreciation of the defense theory and a complete analysis of the strategic advantages or disadvantages of the placement of the accused’s testimony.

Often the speculation by commentators regarding what a client’s decision to testify means as to the overall defense strategy or the desperation of the defense is invalid because those commentators are without knowledge of the underlying decisions, tactics, and strategies of the defense team or the constitutional directives governing the situation. The full complexities of the decision to call the accused as a witness cannot be addressed in a column of this length, but perhaps the above will aid defense counsel in dealing with this challenging situation.

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J. Vincent Aprile II

Lynch, Cox, Gilman & Goodman, PC

J. Vincent Aprile II retired after 30 years as a public defender and joined Lynch, Cox, Gilman & Goodman, PC, in Louisville, Kentucky, where he specializes in criminal law, employment law, and litigation.