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Tsarnaev: To testify or not to testify, that is the question

(photo: Marcin Wichary/flickr)

The Fifth Amendment provides in pertinent part,

No person   .   .   .   shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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