Taking a Stand on Taking the Stand

National Law Journal
6 minute read | November.21.2011

Whether white-collar defendants should testify ar trial is the subject of much debate among criminal defense lawyers. Ultimately, this critical decision must be carefully evaluated in every case, in multiple stages of the process. Balancing the risks against the anticipated rewards of a defendant testifying will differ depending on whether the risks are of substance (e.g., harmful facts that could emerge during cross-examination) or of presentation (e.g,, a danger the defendant may testify in a manner that will hurt his credibility with the jury). Contrary to conventional wisdom, there should be no default position. Absent fatal substantive problems with the defendant's testimony, thorough preparation can eliminate most, if not all, of the presentation risks.

The decision about testifying has garnered recent media attention—particularly with the conviction and unprecedented lengthy sentence of Raj Rajaratnam for insider trading. According to pretrial press reports, Rajaratnam told people close to him that he intended to take the witness stand to explain and justify his conduct. Commentators simplistically noted that testifying would be risky because Rajaratnam could make a mistake in cross-examination and lose the case. Ultimately, he did not formally testify, and many commentators—with no knowledge of all the strategic, legal and personal issues leading to his decision—later blamed the conviction on the defendant's choice to remain silent. However, the decision about whether the defendant testifies is—or at least should be—exceptionally nuanced, and the ramifications of that decision are very hard to judge.