Criminal defense lawyers and all lawyers need to be aware of the possible pitfalls of having their clients testify.
My criminal defense clients have a Fifth Amendment right to remain silent, but sometimes they are likely to be convicted if they do not testify. Cases in point include numerous assault trials and marijuana cultivation trials (where testimony by my client in one such case got a simple marijuana possession conviction rather than a felony conviction for the many seized marijuana plants). Of course, if the criminal defendant’s testimony is going to strengthen the prosecutor’s likelihood of obtaining a conviction, the defendant should stay off the witness stand.
To enhance client testimony and reduce pitfalls, I can have my client participate with me at a trial workshop, testify before a focus group, and testify before videotape to later watch and critique. Nothing, though, beats simply sticking to the testifying client’s oath to tell the truth, and thereby answering the question and only the question, and having faith in me to strategically object and conduct redirect examination.
It can also help for me to present clients with examples of what happens when they deviate from their oath or get contentious. Type in “deposition” in YouTube’s search box, and the first results page returns the following three gems:
– In his 2014 deposition over Justin Bieber’s bodyguard’s alleged assault of a photographer, Bieber not only kept being arrogant, sarcastic, immature and contentious, but also refused to answer various questions, to the point that the court ordered him re-deposed. Whether or not that re-deposition order led to the case’s 2015 civil settlement, I am left to wonder the extent to which Bieber’s lawyer could have better convinced and prepared Bieber simply to answer the questions, or whether his lawyer did all that but ended up throwing up his hands at having such an intransigently contentious client.
– In this deposition that may or may not be fictitious, the deponent who tries to minimize his prior doctoring of a document gets so angry that he finally gives the questioning lawyer a verbal bird flip.
– In this deposition that may or may not be fictitious, the deponent gets contentious with the questioning lawyer, three of the lawyers get contentious with each other, and the deponent and one of the lawyers approach the brink of a fistfight. This video not only is an example of how a testifying witness should not act, but also how lawyers should avoid and diffuse unnecessary contention with each other.
A witness — including a testifying criminal defendant — is on the witness stand only to answer the posed questions and tell the truth. Certainly, the criminal defense lawyer is obligated fully to prepare his or her client to testify, and to pull off the direct examination as smoothly, masterfully and persuasively as possible. While on the witness stand, the criminal defendant must solely focus on fulfilling his or her oath to tell the truth, while answering the question and only the question, and following the judge’s rulings on objections.