From Ghislaine Maxwell to Kim Potter, It’s the Risk Every Defendant Weighs

By day 12 of Ghislaine Maxwell’s federal sex trafficking trial, jurors had heard from an ex-girlfriend of her longtime associate Jeffrey Epstein, from several of his former employees and from four women who allege Maxwell facilitated and sometimes participated in their sexual abuse. As Maxwell’s defense team rested it was clear that one voice was missing.

Ever since the trial began, it had been a constant concern that whether the British socialite would give evidence in her own defence. It’s a pivotal decision for any defense team, and in numerous criminal trials this fall a string of high-profile defendants have made the risky and unusual move to take the stand.
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Kyle Rittenhouse was tearful but mostly composed when he testified on Nov. 10, telling jurors that he feared for his life when he fatally shot two people and wounded another during last year’s protests in Kenosha, Wisc. Georgia, Nov. 17 Travis McMichaelTestified to the fact that he was killed Ahmaud ArberyIn self-defense, a Black unarmed man. Theranos founded within a short time. Elizabeth HolmesShe began seven days of testimony in California at her fraud trial. Actor Jussie SmollettRecently, Maxwell took to the stands to defend himself from charges that he had falsely claimed to have been a Chicago hate crime victim. On Friday, the same day the defense rested in Maxwell’s case, former Brooklyn Center, Minn. police officer Kim Potter TestimonyIn the manslaughter trial she faced for her involvement in the shooting death Daunte Wright.

This recent spate testimonies comes after years of noticeable silence at court by infamous defendants. Harvey Weinstein, Bill Cosby George Zimmerman. Experts believe there are many factors that could explain why high-profile defendants now choose to testify. Experts say that it is not as uncommon or useful as many people imagine.

Are there any benefits to testifying for your defense?

About 50% of defendants generally testify in their own criminal trials, according to Jeffrey Bellin, a William & Mary Law School professor and jury researcher. Many factors can explain why this is, such as the nature and severity of the criminal charges. You can find out more at Self-defense cases for murder, it’s crucial for jurors to hear from the defendant about how he or she perceived danger, because nobody else can provide as powerful an account.

“It’s much more challenging to put the jury in the defendant’s shoes without hearing from the defendant himself,” says Jessica A. Roth, a professor at Cardozo School of Law and a former federal prosecutor. This approach convinced the Rittenhouse jury: the defendant was cleared of all charges. He testified that he had feared for his safety when he opened fire.

Roth said defense attorneys will likely assess how credible their client appears to the jury. They will consider their demeanors and appearance, along with how they describe events in public.

Kim Potter testimony
Court TV/AP/PoolHere’s a screen shot of Kim Potter as she describes to a jury how Daunte Wright was killed during a traffic stop. Potter testified Dec. 17 at her Minneapolis manslaughter trial. She said she mistakenly grabbed her gun for her taser.

Bellin says that younger defendants such as Rittenhouse aged 18 might be motivated by the opportunity to share their stories to help save their reputation. Rittenhouse could, for example, have been confident that his case would not be brought to trial. However, this is likely because he might have thought of how it might affect him in the future. Bellin also believes it makes sense that people who are frequently covered by the media testify to alter the story. These skills could be a benefit to defendants like Elizabeth Holmes who have built their career on persuasive speaking in public.

In the COVID-era, testifying also might be the only time jurors see a defendant’s full face without a face mask. Roth believes that removing a mask can help to humanize the defendant, and possibly build rapport with jurors through nonverbal cues.

The jury will also be able to hear the witness clearly. The Potter trial judge instructed each witness that they must remove their masks upon entering the courtroom. Potter claimed she grabbed her gun accidentally instead of Wright’s taser at a traffic stop. She was stoic during questioning, but she broke down as she recounted the moments leading up to her death. “I remember yelling ‘taser, taser taser,’ and nothing happened and then he told me I shot him,” she wailed, burying her head in her hands.

Which are the potential risks?

One of the biggest reasons defendants don’t testify in their own defense, experts say, is if they have prior criminal convictions. Valerie P. Hans from Cornell Law School, who is a specialist in jury research, says that if a defendant testifies, they will likely reveal information about their convictions. Prosecutors might use this information to challenge their credibility. The first studiesHans studied juries from 1976 and found that people were more likely than others to believe that someone had a criminal history if they are told hypothetically that the defendant is guilty of the current offense. “It’s really hazardous,” Hans says.

The latest version of this article is available here Study on felony juries, Hans found that 60% of felony defendants from 2000 to 2001 took the stand when they didn’t have a prior conviction. Only 45% of those who did not have a prior conviction testified. In about half the cases the jury was informed about criminal records. “That really deters people from testifying,” Hans says. “Lawyers know that if people hear about the existence of a criminal record, it’s going to bias and prejudice their clients.”

Such implicit bias leads many defendants of color to stay quiet, according to Martín Sabelli, a San Francisco-based criminal defense attorney and president of the National Association of Criminal Defense Lawyers. Sabelli said that his clients who are accused of gang-related offenses rarely testify because jurors may make prejudgments about them due to their race.

Ghislaine Maxwell trial
Elizabeth Williams—APGhislaine Maxill, right, is pictured at the courtroom table with Jeffrey Pagliuca as she listens in to her testimony on Dec. 16, 2021 in New York.

Sabelli said that defendants testifying can run into another danger. They may feel the burden shift to their side and the prosecution. The jury could subconsciously give more importance to whether defendants proved their innocence than whether prosecution proved that they were guilty. “My client has to take a huge leap of faith,” Sabelli says.

If they make statements that are different from the ones they have made during trial, defendants can be asked questions about past statements. Any inconsistencies in testimony can also be raised if a witness previously gave evidence under oath, as Elizabeth Holmes did. The prosecution highlighted the inconsistencies in McMichael’s testimony with the original statements that he gave back in 2020 regarding the shooting. A jury eventually found McMichael, along with his father and a neighbor, guilty in Arbery’s death.

“You do sort of wonder in the Travis McMichael case, whether or not it was prudent for him to take the stand,” Hans says.

The fear of being under intense scrutiny, and coming across as unlikable or a liar plays an important role. “It can go terribly wrong,” Bellin says. “It’s such a big moment for the trial, and if it doesn’t go right, you can do a lot of damage.”

Travis McMichael testimony
Stephen B. Morton—AP/PoolTravis McMichael testifies as a witness during the murder trial of Ahmaud Abery in Brunswick (Georgia), on November 17, 2021.

How does the defendant’s testimony, or lack of testimony, impact a jury’s thinking?

Researchers say that each decision has a price. Defendants have a constitutional right not to testify, and juries are instructed that they may not draw any negative inference about a defendant’s guilt if they do not take the stand, Roth says. However, 2018 StudyBellin’s study on mock juries showed that jurors continue to penalize defendants who refuse to take the stand, inferring their guilt by silence. The study’s participants convicted 76% of the defendants who remained silent.

“A common intuition that jurors have is that if you’re innocent, you should want to say so,” Bellin says. The study found that jurors are more likely to convict defendants if they can learn through cross-examinations about a past criminal record.

That’s why, Roth says, it’s frequently more effective as a defense strategy to remind the jury that the government alone bears the burden of proof and to attempt to poke holes in the prosecution’s evidence, without putting the defendant on the stand.

It seems Maxwell’s defense team took that approach. “Your Honor, the government has not proven its case beyond a reasonable doubt,” Maxwell told U.S. District Judge Alison J. Nathan on Friday. “So there is no reason for me to testify.”

Do you think you are more likely to win an appeal if your defense is the only one you present?

It’s unclear, experts say, adding that it’s nearly impossible to predict how a jury will decide in any case. It’s also hard to make any deductions from recent verdicts. McMichael also testified that he had feared for the life of his family when faced with Ahmaud Abery. Rittenhouse was released. McMichael was sentenced to murder. Jussie Mollett was also found guilty of lying to the police about having been a victim in a homophobic and racist attack.

These indicators are not as good in the last years. Harvey Weinstein Bill CosbyThey did not give evidence in the sexual assault cases, but both were convicted. George ZimmermanEven though the case was about self-defense, he did not testify. A Florida jury acquitted Trayvon Martin’s neighborhood watch volunteer, who shot the unarmed Black teenage.

Deliberations were to commence this week by the Holmes-Maxwell-Potter jurors.

Jury consultants can help defendants gain clarity. They work closely with the defense team in order to determine the most effective ways to persuade jurors. Famed consultant Jo-Ellan Dimitrius—who also consulted on O.J. Simpson’s murder trial—worked with Rittenhouse’s team, reportedly assembling three mock juries to determine whether it would help Rittenhouse to testify. “As a result of that it was very, very clear that his story needed to be told about what happened that night,” Dimitrius CNN.

Because verdicts are so unpredictable, Bellin says when he was a prosecutor in Washington, D.C. in the early 2000s, he didn’t feel it was an advantage whether or not a defendant testified. Bellin preferred that they did, for the sake of giving jurors an accurate picture so they could make their own decisions. “It seemed like a much more satisfying trial to hear from the defendant because,” he says, “the defendant knows a lot more about what’s happening than everyone else.”


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