In the largest insider trading case in history, the defense announced that it would rest without the defendant taking the stand and testifying. The decision of the founder of Galleon Group Raj Rajaratnam not to testify highlights the important choice that a defendant and his or her attorney makes.
Jurors are told that criminal defendants have the constitutional right not to testify. They are also told that the prosecution has the burden of proof. In fact, the defendant does not have to call any witnesses or present any evidence.
Despite these principles, jurors often would like to hear from the defendant. This is especially the case when the principal issue in dispute is the defendant’s state of mind. So why, even if a defendant is innocent, might a lawyer advise a defendant not to testify?
The first reason is that the accused might not be an experienced public speaker. The officer who arrested him, by contrast, usually is.
The second reason is more profound. Many jurors judge the testimony of the defendant against a higher standard than everybody else. The assumption is: He would say anything to stay out of jail! Stumble, appear nervous, or get confused about an event, the jurors are watching your every move. But on the other hand, if your testimony seems to be credible, the jury might discount it anyway as essentially self-serving.
Finally, if the government can’t meet its heavy burden of proof why should the defendant do anything?
The choice of whether or not to testify belongs to the accused. It is a strategic decision made with the benefit of the advice of experienced counsel.