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Deciding Whether Defendants Should Take The Stand


The defense in the Jerry Sandusky trial rested today without calling the former Penn State assistant football coach to testify, perhaps because he did not help his cause in media interviews after charges surfaced last November. Here's part of his interview with Bob Costas on NBC.


JERRY SANDUSKY: Well, I could say that, you know, I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them, and I have touched their leg without intent of sexual contact. But - so if you look at it that way, there are things that wouldn't, you know, would be accurate.

CONAN: Lawyers, call and tell us about a time when you've had to make a tough decision about whether or not to put your client on the witness stand. 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. Again, that's at npr.org. Joining us now is criminal defense attorney Gary Asteak. He's the former president of the Pennsylvania Association of Criminal Defense Lawyers, and joins us now from member station KJZZ in Tempe, Arizona. Nice to have you with us today.

GARY ASTEAK: Well, thank you. It's a pleasure to be here.

CONAN: And I know you've been following this case. Did the decision not to put the defendant on the stand surprise you?

ASTEAK: It came as a surprise to me, yes. I thought that the jury wanted to hear from Sandusky in light of the overwhelming evidence that's come in from the prosecution. I think he owed the jury an explanation.

CONAN: And jurors are always instructed, after they start - before they start deliberations that the fact that the defendant didn't testify should make no - draw no conclusions from that. But there's that, and then there's human nature.

ASTEAK: Well, you're right. The law is belied by human nature. Having sat to the trial, the jurors had an opportunity to sit and determine the credibility of all of the witnesses against Sandusky. Sandusky's been sitting there at counsel table. They've had an opportunity to observe him, watch his physical demeanor. But human nature says, if you're innocent, you should protest your innocence. If you didn't do it, you should look me in the eye and say: I didn't do it.

And in light of the fact that the defense theory appears to be that these eight kids were lying for financial gain, that they were influenced to lie by the police and that Sandusky is a man of good character, why shouldn't this man of good character look them in the eye and say: I didn't do it. And here's why I believe they're lying: I was friends to these kids. I was horseplaying - however he wishes to explain it. It doesn't have to be artful explanation. It just has to be honest, sincere explanation, and then maybe the jury will find some sympathy with him.

Maybe the jury will find a reason to care about him, maybe a reason to find a not-guilty verdict. Then you need a reason to acquit him. And at this point in time, without him looking them in the eye and giving them that reason, I think Sandusky's running a huge risk. Although, on the other hand, can't forget, Sandusky was a defensive coordinator. So he ought to know defense. I just hope that he knows a little bit more about criminal defense than he's let on so far.

CONAN: Would an attorney - and this is, again, hypothetical - but would an attorney look at his client's interviews in the media and say: ooh, well, hmm, he's not so good. I don't want to expose him to cross-examination.

ASTEAK: Well, he's been cross-examined by Bob Costas, who is absolutely the best on TV. So if he survived Costas' interview, I'm sure he could survive cross-examination by the attorney general. Ultimately, the decision as to whether or not to testify is the client's. That's one of those inviolate decisions that the lawyer can't make for the client. So, ultimately, Sandusky decided: I am not going to take the witness stand.

CONAN: Here's an email we have from a lawyer named Eric, in Denver: It is - I'm a criminal defense attorney in Denver. Putting your client on the stand is almost always a bad idea. Usually, I will only put my client on the stand if I feel we are losing. It's a last-ditch effort to save a sinking ship. Conversely, if I think we're winning when the prosecution sits down, why have him or her testify? That said, every case is different. Ultimately, it's the client's decision. The average lay person is no match for a skilled prosecutor's pointed cross examination. So it's a Hail Mary pass? Is that the right idea?

ASTEAK: Well, if your client is going to take the witness stand, you obviously prepare him, you know? We've heard on the news lately who's going to be the presidential surrogates for the debates. Well, you do the same thing with any witness. The lawyer asks them the questions, asked them cross-examination questions that they can expect to hear, so you get the witness ready to testify. You go over all the bumps. You have him ready to answer any tough questions.

Ultimately, the decision has to be a strategic one, but you prepare the client for the worst. And again, the kinds of considerations that you have are: Is you're client affable? Is he friendly? Is he likeable? Is he articulate? Can he explain away in understandable terms what he has to explain away? Jerry Sandusky has lived a life of dealing with public relations. He's well-liked in the community, as we've heard from - across Pennsylvania. He's been involved as a public speaker in many places. People say he's charming, he's likeable. He can use all of those same tools that he's developed over the years when he's on the witness stand.

So that kind of surprises me that he is afraid to look the jury in the eye. He doesn't have a prior criminal record. So that's one of the considerations you don't want to put your client on the witness stand, if he's done some things that are embarrassing that might come up in cross-examination. But Jerry Sandusky is articulate, from what we understood, has survived cross examination by Costas and owes the jury an explanation.

CONAN: When you prep a client, is this like a mock cross-examination? Where we you on the night of Oct. 23rd, sir?

ASTEAK: Well, you can imagine all of the hard questions that the prosecutor is going to ask. Now, Mr. Sandusky, victim number one, did you know this young man? How did you know this young man? Now, this young man says that you touched him. Did you touch him? Did you touch him on his private parts? Explain why you didn't go to his mother and explain certain things.

You know, there's a lot of things that came up during the trial that could be explained away that are now going to be left to the imagination of the jury. Since there were eight different victims here, eight different stories have to be debunked, and all they have is the suggestion through cross-examination that these witnesses were lying for financial gain or that the state troopers put words in their mouth. Whether that's going to be enough to convince the jury remains to be seen, but I wouldn't put my eggs in that basket at this point in time.

Sandusky has nothing to lose at this point in time. The prosecutor brought their case in literally with a front-end loader and dumped witness after witness, day after day of incriminating testimony in that courtroom. And those 12 folks in the box are looking over that table and they want to hear from Jerry.

CONAN: Gary Asteak, the former president of the Pennsylvania Association of Criminal Defense Lawyers, a criminal defense attorney himself, of course. He's with us from Tempe, Arizona in member station KJZZ. Let's get a caller in on the conversation. This is Leanne(ph), Leanne with us from Auburn, California.

LEANNE: Hi. I just was going to say, ultimately, it's always the defendant's call as to whether or not they're going to testify. Certainly, there are times when counsel wants to discourage that. Generally, I would say counsel's in the best position to know whether or not their client should take the stand, whether it's because of a criminal history, as your guest pointed out, that's going to be used to embarrass or impeach his testimony or whether it's because you've spent enough time with the client to know they are not going to come across well on the stand and potentially are going to make their case worst rather than better.

CONAN: Was there a case that you remember where it was either a particularly wise or a particularly unfortunate decision?

LEANNE: I've had a number of cases where - I mean, I agree. I think no matter how much counsel and the court reminds the jury that there is a presumption of innocence, jurors always want to hear from the defendant. And, yes, there have been a number of cases where I've just said you really don't want to testify. And I had a case where the client took the stand over my advice, and ultimately, I think it was just extremely detrimental to his case.

CONAN: And there's no recourse after that, of course.

LEANNE: No. It is the client's choice.

CONAN: All right. Leanne, thanks very much for the call. Appreciate it.

LEANNE: Thanks.

CONAN: Here's an email that we have. This is from John: I was a criminal prosecutor in the 1980s in Shasta County, California when a defendant like Sandusky had a particularly unbelievable version and took the stand. An old adage came in very handy during closing arguments. It was: It is better to remain silent and be thought a fool than to speak and remove all doubt. I think that's a quote from Mark Twain. And I wonder, Gary Asteak, if you had a chance to - have a thought like that cross your mind?

ASTEAK: Well, it is always risky. You know, you always say that your client is always his worst witness. On the other hand, I believe that any analysis begins with a premise. The jury wants to hear from him, so why do we not put him on the witness stand and take it from there? It's easy to Monday-morning-quarterback this. It'll be very easy for us to say, he should have testified or he didn't testify. But at the end of the day, the client doesn't want to be sitting and stake prison for the rest of his life thinking, you know, if I'd gotten on the witness stand and I looked him in the eye and I told him I didn't do it, maybe that would have meant a difference.

And if Sandusky does have an explanation or did have an explanation or your client has an explanation, he's going to see the cunning cross-examination of the prosecutor for what it is. The jury is going to see it, and the truth will prevail. Ultimately, the truth will prevail if everyone who participates takes the stand and testifies honestly. And if Jerry Sandusky had decided to take the stand, at least he'll have no buyer's remorse Monday morning when they lose the national championship because he didn't call the play that should have been called.

CONAN: Gary Asteak, a criminal defense attorney. And you're listening to TALK OF THE NATION from NPR News. Let's go next to Al, and Al's with us from Tucson.

AL: Yeah, hi. Thank you very much for taking the call.

CONAN: Sure.

AL: I'm an attorney. I practice in criminal defense for a number of years. I probably did a couple of dozen jury trials, and I will never forget my second jury trial where my - it was a trial for drunken driving, DUI driving. My client insisted on testifying. We had gone over his testimony many times before he had related one version of the story to me over and over and over again and insisted that was what he had to tell the jury. I had told him I did not think it would go well. I suggested he not. He had to testify.

And in the middle of his testimony, he volunteered for the first time that I had ever heard in six months of working with him, I never should've taken the wheel that night. I wish I just given my wife the keys. I was drunk. And obviously, it took the jury 30 seconds once the case went to them to find him guilty. And since that time, I cannot think of a time where I've ever encouraged or not try to discourage a client from testifying, and I can't think of a time where it's ever helped.

CONAN: Ever helped?

AL: In my personal, you know, within my jury trials, I just cannot think of a time where I have seen the client get up and be able to actually convince the jury that either, you know, he's - obviously, the criminal defendant has the greatest - in the opinion of many jurors, I think, has the greatest motivation to shade the truth. So my opinion is, even the juries may want to hear from that individual, they tend to view that testimony, I think, with a preexisting skepticism. And it's just as not - in my opinion, it has not seemed to help my clients. Or the, you know, other attorneys when I watch their trials, it generally does not seem to go well.

CONAN: Thanks for the call, Al. And, Gary Asteak, here's another lawyer who disagrees with you: I represent abusive parents in juvenile dependency courts. I rarely put a client on the stand. No matter how well-prepared a client trying to deceive the court can almost always be questioned into oblivion. Very few people, honest or otherwise, handle a grilling well. Being well-spoken and keeping your cool are two different things. I strongly disagree that the default position is always not to testify. That is your client's best protection.

ASTEAK: Well, each case is obviously different.

CONAN: Sure.

ASTEAK: It depends on the circumstances. If your client tells a story or recounts a version of events that are consistent with other bits of evidence in the case and fleshes out and fully forms the theory of your defense - there's the story of defense. And if your client is capable of fleshing that out and providing a human context to that story, it is far more compelling than asking the jury to decide simply, well, I didn't find him guilty because there was reasonable doubt.

Sandusky - this case, is not a reasonable doubt case. In light of the overwhelming evidence that is in that courtroom, it does not appear to me to be the kind of case where coming in to the defense side of the case, they can say, well, they haven't proved it. They haven't proved their case. Let's go home. Ladies and gentlemen of the jury, we don't want to have to delay this any further. You haven't heard enough evidence against Jerry Sandusky. That is not the juncture of the case as we found it.

The defense indicated that they had some 30 witnesses lined up and called only six. The defendant suggested that they were going to hear from Jerry Sandusky, and they didn't. So there are a lot of factors that go into it. But ultimately, I believe, if your client has a story to tell, he ought to tell it. The jury is going to be happier.

CONAN: Let's see if we get one more quick caller in. Matt's with us from Charlotte. We just have a few seconds, Matt.

MATT: Yes, sir. Thank you. I'm a criminal court judge in Charlotte, North Carolina, and I've seen numerous cases where there very much was reasonable doubt. And yet, the defense put their client on the stand, and their story was so outrageous. It was so fantastic that I was left with the impression that they must be guilty. There's no other reasonable explanation. And so as, you know, you look at the Sandusky case, eight accusers and all these facts, and you wonder, is there any story he could possibly author that wouldn't sound so fantastic and outrageous that wouldn't further convict him?

CONAN: But despite the admonition about presumption of innocence, don't you think, in this kind of a case, not to testify is raising the white flag?

MATT: I tend to agree. I mean, I know that - I'm a judge. I'm not able to consider a defendant's silence, but human nature. People, like you said, want to hear from that person. If I didn't do something, I'm going to scream it from the mountaintops.

CONAN: All right.

MATT: Unless somebody just sits there and stares at their hands or stares at their feet the whole time in a trial, human nature tells you that they're hiding something no matter how many times the law tells you. You can't consider that. The law cannot completely do away with human nature.

CONAN: Thanks very much, judge. And thanks to Gary Asteak, a criminal defense attorney and former president of the Pennsylvania Association of Criminal Defense Lawyers. Appreciate you time today.

ASTEAK: Thank you. It was a pleasure joining you.

CONAN: Tomorrow, what went wrong in Fast and Furious. Join us for that. It's the TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.

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