So. Should he testify?
Follow the link. It’s a good case study in standard arguments about defendants testifying when they are on trial. But there’s one quote from the “expert” they trot out, right at the end, that at least hints at the truth of the matter:
“I tell my clients once you take the stand you have lost your shield, which is me, and you are on your own,” said McMonagle, who was not involved in Sandusky case.
“In my experience as a prosecutor and defense attorney it is rare to see a client take the stand. The problem is, some jurors do hold that against you.”
Indeed some jurors do. In fact, that is so much of a concern that one of the really difficult things to decide is whether to even ask for the instruction from the judge that the jurors are not supposed to do that.
Because it just draws more attention to the fact that the defendant didn’t testify, and otherwise that fact can’t be mentioned by the prosecution or the judge.
So at least this particular expert acknowledges the problem. Good for him. He has some actual experience at criminal trials. On the defense side, although apparently he was also a prosecutor and that’s a factor in his outlook, too, we think.
Speaking of prosecutors, what happens if Weinstein takes the stand and then gets cross-examined? It’s easy for the prosecutor to strike an emphatically skeptical pose during questioning, to impress the jury with how incredible the no-good criminal defendant is, and it most often plays well because the jury is ready to believe the no-good criminal defendant is guilty and, you know, not credible. As we have noted many times before, natural reason predisposes jurors to find guilt. That is the real presumption, not the phony one we pretend to have.
But sometimes a defendant can get the better of the situation and make the prosecutor look like a jerk, which frankly the prosecutor would in fact look like in most any other context, because the kind of cross examination most of them do would be seen as obnoxious behavior at, say, a cocktail party.
Is Weinstein capable of that kind of turn around? Maybe. He’s in the image business, after all.
Not to mention that there is always one big plus for the defendant to testify: the jurors get to know him a little. Even if it’s just a little, it’s harder to pronounce “guilty” on someone you have some acquaintance with than on a complete stranger.
In these parts there was a legendary criminal defense attorney, Felix Lapine. He had a lot of success in criminal trials putting the defendant on the stand. We might say it was one of his secrets of success.
If I’m Weinstein’s attorney I’m trying to prepare him to testify. He has a better chance taking the stand.
As an aside: Daniel Holtzclaw is taking his case to the SCOTUS, claiming innocence. We looked at his case before, assuming the guilt that had been adjudicated, focusing only on the media coverage and treatment. We don’t think the SCOTUS petition has much of a chance. We hope he’s not innocent, because it’s an upsetting story if he is, but in any event we don’t have enough information to know one way or the other. His immediate family seems convinced, though. Family loyalty is a fine thing, we agree.
Update: So, that’s that. The conventional wisdom prevails and Weinstein will not testify, even though he reportedly “wanted to”. We’ll see how that all works out.