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Federal Criminal Trials: Should a Defendant Take the Witness Stand??

Kish Law LLC

A person facing a federal criminal trial often asks his or her lawyer for advice about whether to take the witness stand. A recent decision in the United States Court of Appeals for the Eleventh Circuit now provides some help to criminal defense lawyers in Florida, Georgia and Alabama, the states covered by the Eleventh Circuit. The decision in United States v. Moore helps by whittling away at the old rule which said that the defendant’s testimony could fill holes in the prosecution’s case even when the government failed to produce sufficient evidence of guilt.

One of the hardest questions facing lawyers who represent people accused of crimes is to give advice about whether the defendant should testify in his or her defense. My firm, Kish & Lietz, helps clients with this difficult decision in every case we handle. This decision is especially difficult when we come to the conclusion that the prosecutor’s case is extremely weak. Sometime, lawyers recognize that juries will convict, even when there is virtually no evidence. For example, many jurors are so upset about drugs that people who have virtually no involvement can get swept up in a guilty verdict. However, the lawyer often figures out that he or she might win the case on appeal by arguing what we call “insufficiency of the evidence.” An appellate court is much less likely to get swept up in the emotion of a trial, and can weigh the sufficiency of the evidence more objectively.

However, for many years, the Eleventh Circuit issued a series of decisions which say that even when the prosecutor did not present sufficient evidence, the lack of evidence could be “fixed” if the defendant took the witness stand. The theory behind this rule was that by convicting the defendant who testified, the jury must have decided that the defendant was lieing, and these lies could form affirmative evidence that would fill the holes in the otherwise insufficient prosecution case. This is a truly unfair rule.

Under the Federal Rules of Criminal Procedure, a defendant can ask the trial judge to throw out a case at the point when the prosecutor finishes up his evidence. We lawyers call this a request for a “judgment of acquittal.” A 1994 change allowed the judge to hold off on this decision until the defense lawyer finishes putting up his or her case. However, the old rule in which the defendant’s testimony could fill the holes in the prosecutor’s case placed defense attorneys in a bad spot when a judge decided to postpone making a decision about the judgment of acquittal until the close of all the evidence.

This past week, the Moore decision fixed this situation a little bit. The case says that when a judge holds off ruling on a request for a judgement of acquittal, yet the defendant is later convicted, the appellate court will look at a “snapshot” of the evidence the way it appeared when the prosecution rested its case. In other words, the defendant’s decision to testify cannot be used to fix the holes in a weak prosecution when the judge reserves ruling on a request for a judgment of acquittal.

As I said, giving advice about whether our clients should testify is one of the hardest things we do. In future posts, I plan to discuss other laws that impact this crucial decision.

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