Friday, March 8, 2013

Anyone interested in testifying?

All I can say is "Thank God for New York." Texas may be known as the Killing Fields for the number of inmates we murder year in and year out, but at least defendants in Texas courts don't get screwed the way those facing trial in New York do when it comes to jury instructions.

Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.

At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest. 
Interest/Lack of InterestYou may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. 
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.]
In other words, it's up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased. 

Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.

Sounds like you're damned if you do and you're damned if you don't up there.

The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.

You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.

I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.

One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.

Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.

He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.

So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.

Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.

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