EXPLAINER - Are there more defendants who testify at trial?

CHICAGO (AP), -- Defendants addressed jurors in a series recent high-profile trials. They defied conventional wisdom that taking the stand is a risky business.

EXPLAINER - Are there more defendants who testify at trial?

Kim Potter was one of those who testified. She was convicted Thursday for manslaughter in the death of Daunte Wright.

Kyle Rittenhouse was another, and he was acquitted last month of murder in the shooting deaths of two protesters in Kenosha (Wisconsin), and one other.

The emergence of testifying defendants raises questions about whether there is a shift in thinking among lawyers. Many of them have always viewed putting clients on trial as a last resort and desperate option.

Are there more defendants?

It is possible that there are some clues.

Alan Tuerkheimer, a Chicago-based jury consultant, said that there has been "a spate of defendants taking to the stand -- and this is a break with tradition."

He speculated that defendants are more likely to speak in an age of social media where people post and read public comments about everything. This may have also altered jurors’ expectations.

He stated that jurors seem to have a growing expectation that defendants should be tried and convicted.

Phil Turner, a former federal prosecutor, said that he was not convinced lawyers were changing their overall views about client testifying.

He said, "I would like to see a lot of trials to tell."


Jussie Smollett, actor, testified this month at the Chicago trial. He said that he was the victim of a racist and homophobic attack. He was convicted of lying to police a few days later.

Travis McMichael was also a white man that fatally shot Ahmaud Arbery (a Black man) as Arbery ran bare-handed through a Georgia subdivision. Later, he and his two co-defendants received murder convictions.

Elizabeth Holmes, former CEO of Theranos, testified seven days in November during her fraud and conspiracy trial. Her jury is still in deliberation.

Potter testified last Wednesday, sobbing as he described her shock at realizing that Wright had been shot during a traffic stop.


It is not possible to find data about the percentage of defendants who have testified in recent years. It will take many years to compile. Studies on the testimony of defendants are rare.

A Cornell Law Review study that examined over 300 criminal trials in 2009 revealed that 77% of defendants who gave evidence were found guilty. Around 72% of defendants who refused to testify were convicted.

Hans Zeisel and Harry Kalven conducted a 1950 study and found that defendants with no criminal record testified more than 90% of the times, while those with criminal records only testified about 70%.

Because of the possibility of prosecutors exposing their criminal pasts, defendants with criminal records are less likely to testify. Recent testimony by high-profile defendants revealed that they had either no or very few criminal records.


McMichael and Rittenhouse claimed self-defense. Their mental states during the shootings were crucial to their trials. Because jurors could only hear what they were thinking or feeling, they had no choice but to testify.

Rittenhouse said he was afraid for his life and broke down as he spoke out about a protester who he had fatally shot. McMichael claimed that he was forced into firing, claiming Arbery attacked him. He then grabbed his shotgun.

Holmes and Potter testified to their mental states, even though it was not as important in their trials.

Holmes stated that she did not intend to trick anyone regarding the revolutionary blood testing technology that her startup claimed was revolutionary, and that she truly believed that it could work.

Potter said to jurors that she was overcome with fear when Wright was shot because she believed he was about drive off with another officer.

It's not clear what Smollett thought he would gain from testifying in Smollett’s case, especially considering the overwhelming evidence that he feigned an attack against himself.

Turner suggested that Smollett's lawyers might have tried to convince him.

He said, "But a lot times lawyers don't manage their clients." Turner was asked how he felt Smollett performed on the stand. He replied, "It wasn't a disaster."

What are the risks of taking the STAND?

The greatest risk is that defendants, by testifying against themselves, open themselves up for a potentially disastrous cross-examination.

Prosecutors are out to get the best of defendants, catch them in lies or provoke them to lose their tempers or blurt out incriminating information.

Rittenhouse did not make any obvious mistakes during cross-examination at his trial. McMichael, however, stumbled under the tough questions and admitted that Arbery had not threatened him verbally or brandished any weapon.

Ghislaine Maxwell was one defendant whose lawyers probably concluded that the risks of testifying were too high. Ghislaine Maxwell, a British socialite charged with recruiting teenage girls to finance Jeffrey Epstein's business, did not testify in her New York sex-trafficking trial. There has not been a verdict.


It is possible.

A jury is not supposed to consider a defendant's silence as evidence of guilt. Prosecutors are prohibited from using a defendant's refusal to testify against them as evidence of guilt.

Tuerkheimer stated that even with the instructions of a judge to not, some deliberating jury members likely play a role in a defendant's decision to not testify.

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