Why Defendants Shouldn't Testify

We now know even more than we did yesterday about what jurors were thinking when former Enron chief's Kenneth Lay and Jeffrey Skilling testified in their own behalf at their fraud and conspiracy trial in federal court in Houston. And what we have learned since the verdicts ought to remind every defense attorney out there why it is such a bad idea to allow the client to testify in a criminal trial.

For example, one juror said of Lay: "He was very focused, but he had a bit of a chip on his shoulder that made me question his character." She did not explain how Lay's character would have anything to do with his passionate appearance on the witness stand. But, then, jurors aren't required by law to offer rational explanations for their perceptions. It's the defense that bears the risk of nonsequitors in the jury room.

Another juror said that he learned to "respect and like the defendants" before convicting them. With friends like that, right? Some jurors said that the two men never should have testified. At least one said that she believed the defendants absolutely had to come to the witness stand. "I would have always had questions if they had not taken the stand," the woman said.

No doubt Lay and Skiling and their attorneys figured their best chance for an acquittal was to try to sell jurors on the defense theme using the best salesmen around-- the defendants themselves. No doubt defense attorneys believed that Lay and Skilling were seasoned and savvy enough to withstand the intense prosecution they knew they would face. And, for the most part, both men did as well as they could have expected on the witness stand. It just wasn't enough. It rarely is. That's why criminal defendants rarely take the stand in their own defense. And that's part of the reason why Lay and Skilling are looking at spending the next few decades in a federal penitentriary.

By  |  May 26, 2006; 9:00 AM ET
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On May 18, your paper carried a special report by Janet Guyon of Fortune Magazine on the HealthSouth fraudster, Richard Scrushy, who was acquitted in an example of jury nullification that beat the OJ jury by a mile. Scrushy did not take the stand, but "God was on his side" according to his wife Leslie.

Please write about how the ex-CEO and his wife bamboozled the feds and the jury.

Posted by: Christine | May 26, 2006 02:23 PM

Well, that's a great theory, except that the presumption of innocence really doesn't exist. Jurors almost always say something after a trial where the defendant did not testify, about how they would have liked to have heard from the defendant. Your silence will be held against you, whether anybody on the jury admits that or not.

The problem was not that they testified. The problem was Mr. Lay's demeanor. Who is going to buy the idea that he had no control over Enron when he is wrestling his own defense attorney for control of the defense? Egomaniacs are always their own worst enemy.

Posted by: attorneyofrecord | May 26, 2006 06:46 PM

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