'The Defense Calls ... the Defendant'

Most criminal defendants are advised against testifying at trial, but white-collar defendants usually must testify. Since state of mind is a key element in many business crimes, often the most important issue is what the defendant intended in taking (or failing to take) a specific action. The defendant's best hope may be to look jurors in the eye and convince them of his or her innocent state of mind. Besides, jurors tend to think that anyone wrongly accused would take the stand to proclaim his or her innocence.

Suppose you have decided your client will take the stand. This is your main event at trial, surpassing even cross-examination of the prosecution's star witness. Your client's testimony will have immense consequences not only for himself, but for other defendants and the company. Given the high stakes, it is amazing that legal libraries are not filled with “how-to” advice. Each case is different, yet there are some universal steps to success.

Make an Early Assessment

Every attorney about to embark on a criminal trial empathizes with the client. It is an indispensable aspect of the job. But with this empathy comes a loss of perspective. Bring in a jury consultant for a more balanced perspective on how your client will appear to twelve strangers. Jurors will base their judgment on their intuitive sense of your client's credibility. In fact, the court's instructions invite them to make just such assessments, and to accept or disregard your client's testimony accordingly.

The jury consultant's greatest value is providing an honest and accurate measure of your client's believability to the jury. Many attorneys believe that engaging a consultant means a full-blown mock trial — a costly, time-consuming, and speculative exercise in criminal cases where critical pieces of discovery often are not known until just weeks before trial. But such intensive and expensive preparation is not required. Surprisingly, a 15- or 20-minute videotape of direct and cross-examination shown to a focus group drawn from your jury pool is enough to provide you with crucial information on the basic question of how credible your client appears during his testimony on key themes. The presentation and cross-examination of other witnesses and the arguments of attorneys may also be important to your focus group exercise, but in reality they are only icing on the cake.

The earlier this fundamental exercise is undertaken, the better. Early assessment means that key defense themes can be modified significantly as necessary, before they become ingrained in the strategy of counsel and in the mind of the client. Equally important, that early assessment will allow you to decide just how much of the testimonial load your client can carry. If he does well, you can put on more evidence through him, and the defense witness list can be pared down. If not, then you will have ample opportunity to develop other witnesses on points that you now know will require extra assistance. Early assessments also have a way of humbling strong-willed clients, who will quickly realize that the attitude and body language that persuades subordinates in the company is not what succeeds with a jury of one's peers.

Get Right to the Point

Contrary to what you might expect, jury studies show that there is great power in outright denials (and power in straightforward accusations as well). Imagine you are a juror who has sat through the prosecution's case, often over a number of days or even weeks. By now you probably have a good idea what the case is about. If you haven't made up your mind entirely, you likely are leaning heavily to one side or the other. You have been waiting for the defendant's testimony to confirm or deny your suspicions. As the defendant climbs onto the stand, you and the rest of the jury listen with rapt attention to what you believe will be one of the most exciting moments in the case.

As counsel, you must ask the crucial questions of your client and get the denials or explanations at the outset. Strike while the iron is hot and with your best information. Don't squander the golden moment with an extended recitation of the defendant's education, business experience and community participation. Pro-prosecution jurors will probably tune out for good. Background information about your client can come later, perhaps after a lunch break or a recess for the day. If you have done your job in your opening and examinations of other witnesses, the jury already knows much of your client's background.

Get Help on Cross-Examination

Diligent and thorough trial preparation is the hallmark of any good attorney. For a variety of reasons, however, less time and care is often given to preparation for cross-examination than for direct testimony. Hard-nosed cross-examination is like hard-nosed management: It's hard to do with those you know well. Even if it's just for practice, aggressive cross-examination can upset the attorney-client relationship. Moreover, counsel for the defense, no matter how experienced and careful their judgment, are likely to overlook or minimize facts about their client that another lawyer (and a jury) will find significant. Just as an independent consultant to assess credibility was critically important, so too is an independent practice cross-examiner.

The trick is to find someone even better than you at cross-examination, and turn that bulldog loose on your client. That might be someone from another firm working on the case, or even a partner or other colleague brought in for this special purpose. As long as they are separate from your defense team, the exercise is one that will ensure adequate preparation, protect and cement the bond of client and defense counsel, and train your client to handle one of the more difficult experiences of his or her life.

Your client's demeanor and flexibility in the face of aggressive prosecution is just as important as the substance of what is said. Jury consultants will inform you that a change in attitude from direct to cross will be noticed by the jury and count against your client. Therefore, multiple practice sessions are essential. Realism is also key to effective preparation, so pack the mock courtroom as much as you can, even if only over lunch.

Your client will find cross-examination mentally and physically exhausting. Direct is bad enough, even though the client is working with someone he or she knows well and going over material that is by now very familiar. Cross demands a much higher level of concentration. Anyone who has undergone hostile questioning in any forum can attest to the energy levels required. All of us have seen or participated in trials in which a cross-examiner wears down a witness who either loses patience or gives an unfortunate answer that would not have been given if the question had been asked earlier in the day. If you expect, or suspect, a long cross for your client, then he or she will have to train for it by undergoing mock crosses of extended duration. Failing to do so can be fatal. Once you get to trial, a 10-minute recess called at your request when you see your client flagging on the stand will not be enough to repair the damage.

In General, Less Is More

Of course, the more direct testimony your client proffers, the more fodder for cross-examination you provide. If a short examination on videotape is enough for a focus group, then a short, strong examination aimed at the heart of the charges will be enough for your jury. Keep in mind that you do have other witnesses to buttress your client's testimony.

Prepare for the Agard Cross

Unlike other witnesses, testifying defendants are unique because they have sat through the entire trial. Because defense counsel often put their clients on last, the defendant will have seen the openings and the direct and cross of all the witnesses. In a little-discussed Supreme Court case decided in 2000 (Portuondo v. Agard, 529 U.S. 61), the Court permitted prosecutors to cross-examine defendants on the ground that their carefully crafted answers were the result of sitting through the trial.

The Court rejected the defendant's assertion that such cross-examination infringed on his constitutional rights, holding that it went to the defendant's credibility and was not an unfair suggestion of “guilt.” While prosecutors have not yet widely adopted this technique, you and your client should be prepared for such a cross. Your client's statement that he or she is obligated to be present for all proceedings easily diffuses this potentially volatile situation.

Conclusion

Successfully preparing your client to testify as a defendant amounts to little more than practicing early and often. But this exercise must be a team effort, one that includes your client, your co-counsel, your consultants, your cross expert, and as many others as you can find who will help by adding their unique perspectives. The concern that testimony can be overly rehearsed is misplaced: If your client's testimony sounds practiced, then those on your broader defense team will point that out. Your client must testify, and must testify well. Proper preparation is essential to a favorable verdict.

Most criminal defendants are advised against testifying at trial, but white-collar defendants usually must testify. Since state of mind is a key element in many business crimes, often the most important issue is what the defendant intended in taking (or failing to take) a specific action. The defendant's best hope may be to look jurors in the eye and convince them of his or her innocent state of mind. Besides, jurors tend to think that anyone wrongly accused would take the stand to proclaim his or her innocence.

Suppose you have decided your client will take the stand. This is your main event at trial, surpassing even cross-examination of the prosecution's star witness. Your client's testimony will have immense consequences not only for himself, but for other defendants and the company. Given the high stakes, it is amazing that legal libraries are not filled with “how-to” advice. Each case is different, yet there are some universal steps to success.

Make an Early Assessment

Every attorney about to embark on a criminal trial empathizes with the client. It is an indispensable aspect of the job. But with this empathy comes a loss of perspective. Bring in a jury consultant for a more balanced perspective on how your client will appear to twelve strangers. Jurors will base their judgment on their intuitive sense of your client's credibility. In fact, the court's instructions invite them to make just such assessments, and to accept or disregard your client's testimony accordingly.

The jury consultant's greatest value is providing an honest and accurate measure of your client's believability to the jury. Many attorneys believe that engaging a consultant means a full-blown mock trial — a costly, time-consuming, and speculative exercise in criminal cases where critical pieces of discovery often are not known until just weeks before trial. But such intensive and expensive preparation is not required. Surprisingly, a 15- or 20-minute videotape of direct and cross-examination shown to a focus group drawn from your jury pool is enough to provide you with crucial information on the basic question of how credible your client appears during his testimony on key themes. The presentation and cross-examination of other witnesses and the arguments of attorneys may also be important to your focus group exercise, but in reality they are only icing on the cake.

The earlier this fundamental exercise is undertaken, the better. Early assessment means that key defense themes can be modified significantly as necessary, before they become ingrained in the strategy of counsel and in the mind of the client. Equally important, that early assessment will allow you to decide just how much of the testimonial load your client can carry. If he does well, you can put on more evidence through him, and the defense witness list can be pared down. If not, then you will have ample opportunity to develop other witnesses on points that you now know will require extra assistance. Early assessments also have a way of humbling strong-willed clients, who will quickly realize that the attitude and body language that persuades subordinates in the company is not what succeeds with a jury of one's peers.

Get Right to the Point

Contrary to what you might expect, jury studies show that there is great power in outright denials (and power in straightforward accusations as well). Imagine you are a juror who has sat through the prosecution's case, often over a number of days or even weeks. By now you probably have a good idea what the case is about. If you haven't made up your mind entirely, you likely are leaning heavily to one side or the other. You have been waiting for the defendant's testimony to confirm or deny your suspicions. As the defendant climbs onto the stand, you and the rest of the jury listen with rapt attention to what you believe will be one of the most exciting moments in the case.

As counsel, you must ask the crucial questions of your client and get the denials or explanations at the outset. Strike while the iron is hot and with your best information. Don't squander the golden moment with an extended recitation of the defendant's education, business experience and community participation. Pro-prosecution jurors will probably tune out for good. Background information about your client can come later, perhaps after a lunch break or a recess for the day. If you have done your job in your opening and examinations of other witnesses, the jury already knows much of your client's background.

Get Help on Cross-Examination

Diligent and thorough trial preparation is the hallmark of any good attorney. For a variety of reasons, however, less time and care is often given to preparation for cross-examination than for direct testimony. Hard-nosed cross-examination is like hard-nosed management: It's hard to do with those you know well. Even if it's just for practice, aggressive cross-examination can upset the attorney-client relationship. Moreover, counsel for the defense, no matter how experienced and careful their judgment, are likely to overlook or minimize facts about their client that another lawyer (and a jury) will find significant. Just as an independent consultant to assess credibility was critically important, so too is an independent practice cross-examiner.

The trick is to find someone even better than you at cross-examination, and turn that bulldog loose on your client. That might be someone from another firm working on the case, or even a partner or other colleague brought in for this special purpose. As long as they are separate from your defense team, the exercise is one that will ensure adequate preparation, protect and cement the bond of client and defense counsel, and train your client to handle one of the more difficult experiences of his or her life.

Your client's demeanor and flexibility in the face of aggressive prosecution is just as important as the substance of what is said. Jury consultants will inform you that a change in attitude from direct to cross will be noticed by the jury and count against your client. Therefore, multiple practice sessions are essential. Realism is also key to effective preparation, so pack the mock courtroom as much as you can, even if only over lunch.

Your client will find cross-examination mentally and physically exhausting. Direct is bad enough, even though the client is working with someone he or she knows well and going over material that is by now very familiar. Cross demands a much higher level of concentration. Anyone who has undergone hostile questioning in any forum can attest to the energy levels required. All of us have seen or participated in trials in which a cross-examiner wears down a witness who either loses patience or gives an unfortunate answer that would not have been given if the question had been asked earlier in the day. If you expect, or suspect, a long cross for your client, then he or she will have to train for it by undergoing mock crosses of extended duration. Failing to do so can be fatal. Once you get to trial, a 10-minute recess called at your request when you see your client flagging on the stand will not be enough to repair the damage.

In General, Less Is More

Of course, the more direct testimony your client proffers, the more fodder for cross-examination you provide. If a short examination on videotape is enough for a focus group, then a short, strong examination aimed at the heart of the charges will be enough for your jury. Keep in mind that you do have other witnesses to buttress your client's testimony.

Prepare for the Agard Cross

Unlike other witnesses, testifying defendants are unique because they have sat through the entire trial. Because defense counsel often put their clients on last, the defendant will have seen the openings and the direct and cross of all the witnesses. In a little-discussed Supreme Court case decided in 2000 ( Portuondo v. Agard , 529 U.S. 61), the Court permitted prosecutors to cross-examine defendants on the ground that their carefully crafted answers were the result of sitting through the trial.

The Court rejected the defendant's assertion that such cross-examination infringed on his constitutional rights, holding that it went to the defendant's credibility and was not an unfair suggestion of “guilt.” While prosecutors have not yet widely adopted this technique, you and your client should be prepared for such a cross. Your client's statement that he or she is obligated to be present for all proceedings easily diffuses this potentially volatile situation.

Conclusion

Successfully preparing your client to testify as a defendant amounts to little more than practicing early and often. But this exercise must be a team effort, one that includes your client, your co-counsel, your consultants, your cross expert, and as many others as you can find who will help by adding their unique perspectives. The concern that testimony can be overly rehearsed is misplaced: If your client's testimony sounds practiced, then those on your broader defense team will point that out. Your client must testify, and must testify well. Proper preparation is essential to a favorable verdict.