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Federal Criminal Trials: More Thoughts on Whether the Defendant Should Testify

Kish Law LLC

Trials of Federal criminal cases are difficult enough to defend, but helping the client figure out whether to testify in his or her defense might be the single hardest job for the lawyer. In an earlier post, I described some rules by which the courts say that the defendant’s testimony can “fix” the holes in an otherwise insufficient prosecution case. Today, I want to go over a few other issues that can affect whether the client should or should not testify.

The Sentencing Guidelines control much of the potential sentence that our clients are facing in Federal court, but these Guidelines also have a huge impact on the trial itself. First, a Defendant who pleads guilty can earn up to three points off the Guideline score, while a defendant who goes to trial will almost never get this reduction. In other words, the Guidelines punish a defendant who wants his or her day in court.This seems manifestly unfair when we explain it to many of our clients, and I basically agree with them.

However, the Guidelines have a second, and even more dangerous, effect on trials. Under the Sentencing Guidelines, a defendant who engages in “obstruction of justice” gets two more points added to his or her score. When a defendant testifies yet is found guilty by the jury, prosecutors always claim that the defendant lied on the witness stand, and therefore should get these two extra points for obstruction of justice. The United States Supreme Court has said that it is OK to do this, and these two points are not an unconstitutional infringement of a person’s right to defend him or herself.

What this means in effect is that whether to have a trial and whether the client should testify in his own defense can result in as much as a five point swing under the Sentencing Guidelines. These five points can make the difference between many years in prison as opposed to a much shorter sentence. Clients need an attorney who knows these rules, and who can assist in determining whether it is worth the risk to have a trial and testify. My law partner Carl Lietz and I regularly go over these risks with all our clients who have been charged with federal crimes.

I often talk with or sometimes even represent people who had other lawyers in their federal cases. The vast majority of lawyers know these rules, or at the very least, they learn about the rules from more experienced attorneys. People who are charged with crimes need to make sure they select an attorney who not only knows the law, but who is capable of helping the client with these difficult decisions. Here at Kish & Lietz, we pride ourselves on working with our clients to come up with the best decision about whether or not to testify.

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