Casey Anthony: The Decision Not To Testify

Personally I think it’s a mistake unless the only way she could testify truthfully would mean she would have to admit criminal liability in her daughter’s death.  And if that’s true, then it is indeed “astonishing” as commenter April has said, that a plea deal wasn’t reached long ago.

There’s already been a lot of vituperation from the media over this decision, insisting that the defense came up empty on delivering what was promised in the opening.

Now, that is not necessarily true at all.  The pundits have been so deaf to anything favoring the defense that there might be a lot in evidence, and no one has yet guessed what it might mean.  And they won’t know until the closing arguments, when Baez or whoever closes brings these things up.  And even then the media might not accurately report on it.

One good thing that happened here is that a lot of people got to see what it’s like when the judge is biased, and there have been many complaints.  I can tell you from a lawyer’s perspective it is extremely frustrating and it always seems there is little you can do about it.

The fact of the matter is that it’s a lot more likely that a jury will find guilt when the defendant doesn’t testify.  They are warned not to infer anything from it, but it is human nature that you want to see the defendant, well, defend themselves.

We have a prosecution rebuttal case to go, but it’s hard to see what would be in it, or what they feel they have to rebut.  After that, unless a sur-rebuttal is allowed, which would be unusual, the closing arguments and then the jury has it.




Filed under Judicial lying/cheating, wrongful convictions

5 responses to “Casey Anthony: The Decision Not To Testify

  1. hcannon

    It will be interesting to see what the jury does with the limited amount of information they have.


  2. But she can’t testify, she is mentally ill. Her mental problems aren’t recognized by the court and if she goes into a dissociative state who knows what she will say. It is very wise not to put her there.


  3. April

    [ They are warned not to infer anything from it, but it is human nature that you want to see the defendant, well, defend themselves. ]

    Bingo! Casey not taking the stand means to me that she is not ready to come clean, and tell the truth, the whole truth and nothing but the truth.

    Everybody knows by now about all her past lies in connection with Caylee’s death. The defense couldn’t have been concerned about them. As you correctly pointed out in an earlier post, everybody knows she is a liar, and she can only gain from appearing on stand, but only so long as she doesn’t tell some new lies. You see defense has implied that Casey is a changed woman: she lied in the past because of the disconnect from reality, but she is now able to face reality head on – look how she came clean about her sexual abuse by her father.

    The latest move by defense suggests that their claim of a changed woman is lie. That may mean that she is not “coming clean” about any sexual abuse, but she has manufactured it out of whole cloth. I am not surprised. Like defendant, like defense.


  4. wvlaw1042

    I think it was a wise decision to not testify. First, it is her constitutional right to not testify. While it is human nature to draw inference about certain things, it is engrained in American culture that a defendant does not have to testify. Everybody knows you have the right not to testify and because of that, I don’t think it is that big of deal. I think the defense at least got some evidence as to the points they wanted to bring out through other witnesses and nothing can be gained by putting her on there. In fact, it would give the prosecution a chance to go day-by-day and discredit her. While she has already been discredited by other people, this would look a lot worse having Casey on the stand, confronted with her lies, and admitted that she lied day after day. Finally, putting her on the stand would give the jury a chance to judge her demeanor under the pressure of questioning. She would be in the direct spotlight and if she comes off in an unsavory way, she would be signing her own death certificate. It is too much of a wild card, no matter how much preparation she has been through.

    Second, if the jury is instructed correctly, which is doubtful because of Judge Perry’s obvious bias, the jury will not draw any inference regarding her being guilty or not guilty., it is surprising how many jurors take the Judge’s instructions seriously. I had a law school professor who would conduct mock trials and watch the jurors deliberate. In fact, in the mock trial I put on we got to watch two sets of juries deliberate and both sets really took what the judge told them to heart. Now I realize that those were mock cases with mock juries, but I was shocked at how the jurors would say something like “Remember the judge said X” or “Remember the judge instructed us to do Y.”

    Basically, what I am saying is, twofold. First, I think people put too much weight on the inferences drawn by jurors as to whether or not she testified. Second, I think it is very dependent on the instructions given to the jury regarding this right not to testify. I also think that the judge’s manner and tone in giving this instruction could also play a part in the jurors mind because they are taking cues from him. Unfortunately for the defendant, I think the Judge has shown his hand a little too much in favor of the prosecution.


    • A good summary of the conventional reasons lawyers usually advise their clients not to testify in criminal cases. You might wish to read my post on this subject today, where I’m trying to deal with underlying jury dynamics that make the question quite a bit more complicated.

      I don’t mean to patronize. You are quite right about the influence of the judge’s instructions. And it isn’t just what the judge does or says that can be picked up in a transcript. There are a million subtle little things a judge does and says. And by virtue of his image and position – even his physical position sitting way above everyone else – these signals are very powerful in the minds of jurors, who are looking for someone or something above the often confusing fray they observe on the floor of the courtroom.

      A “little too much in favor of the prosecution”? You have a talent for understatement.


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