Roger Clemens’ defense team rested their case recently without forcing Clemens to take the stand in his own defense. While this decision often frustrates people (i.e., OJ Simpson, Martha Stewart, or Dr. Conrad Murray), it is an extremely complex decision. This time around, the Roger Clemens comments went something like this: “@JonHeymanCBS: so clemens wont testify. jury supposed to take no negative inference. but wouldnt man innocent of perjury get on stand?”
Even though Heyman’s probably observed dozens of athlete-focused trials over the years, I’ll cut him some slack because he’s not a professional. The professional lawyers likely have numerous reasons they made this decision.
One of those reasons includes an aim to avoid trial surprises. The decision also includes weighing the pros and cons within a set of Federal Rules of Evidence. Some say those rules are stacked against the defendant, but regardless, they are the rules in which you play the game.
The positives in allowing a defense witness to testify are relatively obvious, the IT guy tells his side of the story, looks directly into the eyes of the jury, and presents himself and his reputation on his own. Just keep in mind that every witness on the stand testifies, subtly or not, that s/he is a truthful person. The defense attorney is not likely to run into any surprises with his own client, so it seems like a good idea, until…
The negative implications, which are also much more subtle, are considered. Let’s start with the Federal Rules of Evidence #404:
“Evidence of a person’s character is NOT admissible for the purpose of proving an action is in conformity therewith on a particular occasion…”
That means the Rules do not allow a party to say “You’ve lied before in your life, correct? OK, then ‘once a liar, always a liar.’” It simply wouldn’t be fair. Each person accused of a crime is on trial for that crime alone, not a lifetime of indiscretions.
There is a major exception to this rule that most impacts the accused defendant. It states in essence:
“In a criminal case, evidence of a pertinent trait OFFERED BY THE ACCUSED… [allows for admissible] evidence of the same trait [to] be offered by the prosecution.”
LET’S PLAY IT OUT
- Defendant: He takes the stand, part of his goal is to tell his story, demonstrate he is a truthful and trustworthy witness, and provide factual evidence as a part of a defense to his claims.
- Prosecutor: The prosecution NOW may rebut the same evidence presented by the accused WITH character evidence. Enter (nasty) surprises. Defendant opens the door to attacks on his character, reliability as a witness, honesty, morals, etc. This is where it could get ugly and dangerous for the defense.
On the flip side: Defendant Does Not Testify
- Defendant: Does not take the stand, the accused “offers no evidence” of himself per Rule #404, and therefore does not open the door for the prosecution.
- Prosecutor: They prosecution does not have any personal character evidence offered by the accused, so in keeping with Fed Rule Evidence #404 “character evidence of the accused is not admissible.”
An innocent man may very well want to take the stand, but may decide the uncertainty is too risky. If that is the case, he is forced to provide all of his evidence through other means to avoid a character attack and damning surprises at trial.