The Importance of Themes in Criminal Trials

Over the years, I have observed that the best trial lawyers have a theme, or theory, of their case, which they utilize thoughout the trial.

For instance, if your theory, or defense, involves accident or mistake, then you will want to help the jury focus on this theme throughout the trial. For example, if accident or mistake is your defense in a Medicare fraudulent billing case, beginning with jury selection, during voire dire, the defense attorney may ask prospective jurors several questions concerning whether they have ever made mistakes while filling out forms. Of course, we all have made such errors! But the answer is not the important point. The important point is that the defense attorney is trying to develop a theme and encouraging the jurors to think about the possibility of making a mistake. You also hope the jury will relate to your client.

Another good theme I have seen used at trial involves the old saying, "bad things happen to good people." Doesn't that theme give you a good image of a person that you can relate to? Again, the point is that you want the jury, from the very beginning and all throughout the trial, to relate to your client and to recognize that a mistake may have occurred, but that your client is not a "bad egg!"

Of course, utilizing a theme can carry you only so far at trial! For instance, if the government has video tape, DNA, and finger print evidence, your goose may be cooked no matter what theme you utilize! And if you were representing Charles Manson, would a theme really matter?! What could your trial theme be for Manson? "Bad things happen to mad, psychotic people?!"

Presumption of Innocence: The Decision Not To Testify

All my career, both as former prosecutor and current defense attorney, I have heard people say, "If the defendant is really innocent, why didn't he take the witness stand?" If you were chosen to be a juror in a criminal case, could you follow a judge's instructions that you must not hold it against the defendant if he or she chose not to testify?

The 5th Amendment essentially protects each of us against having to testify and perhaps (unintentionally) incriminating ourselves. Also, judges always instruct juries that each defendant is presumed to be innocent and that the defendant does not have to testify. But like a lot of defense lawyers, I live in the real world and I am always afraid that some jurors will overlook the judge's instructions and hold it against my client if he decides not to take the witness stand.

As a result, I always carefully discuss the pros and cons with my client before my client decides whether or not to take the stand.

It is important to point out that there are many reasons, aside from any question as to guilt or innocence, as to why a defendant might choose not to testify. For example, some defendants might be innocent, but inarticulate. In other words, in this situation, the defendant and his attorney might be afraid that, if he testifies, an experienced prosecutor might be able to twist his words and make him look guilty. In other situations, while the defendant may be innocent, he may also have a bad temper. In that situation, the defendant and his defense lawyer may fear that the prosecutor may try to make him look guilty by making him lose his cool on the witness stand. Folks, these things can happen in the real world and in a real trial!

Each criminal case is different. And in each case, it is critical that a lawyer and client should carefully consider and discuss the client's decision about testifying. But it is also important to recognize the harsh reality that some jurors may simply hold it against the defendant if he or she exercises their Constitutional right not to testify.

What do you think? Would you be able to follow a judge's instructions? And please be honest: Would you hold it against a defendant who chose not to testify?