In the wake of the Conrad Murray trial, there has been a lot of talk in the media about the strategy of the defense in a criminal trial. To many people’s surprise, Dr. Murray elected (it’s ultimately his choice) not to testify in his own defense. Many people question why he did not testify. In Dr. Murray’s case, he is represented by two highly skilled criminal defense attorneys. I met Michael Flanagan some 15 years ago when I took his multiple week DUI defense program offered through The University of Southern California’s Law School. Mr. Flanagan and his partner, Charles Unger, are both veteran defense attorneys, each with hundreds of jury trials under their belts.
Why then did they not have Dr. Murray testify? And, more importantly, how does a defendant in a criminal case decide if he should testify at trial? In the words of veteran Los Angeles County Public Defender Monnica Thelen, “the jury often wants to hear from the defendant in a criminal case.” Here are some general rules I have developed to guide when a defendant might consider testifying:
- Will he be subjected to impeachment based upon prior statements or actions?
- Does he have an extensive criminal history that will come out?
- What was the state of the evidence and do we “need” his testimony?
- Does the defendant feel comfortable testifying?
- Will the defendant be able to withstand cross-examination? And last, but not least,
- How will the defendant really “present” to the jury?
In the Murray case, Dr. Murray is obviously a bright and articulate physician who could likely present well on the stand. Thus, the possibility of his testimony is very real and subject to other factors above.
In his case, there were prior statements which he made to law enforcement that could be used against him if he testified differently on the stand than his statements to the police. Further, some evidence in trial such as phone calls and text messaging near the time of Jackson’s death may be used to make the defendant look bad in front of the jury.
With Dr. Murray there is no issue of criminal history. However, we must also look at a defendant’s potential impeachment for prior bad acts such as is often the case in criminal prosecutions. Under certain evidence codes, prosecutors could seek to admit acts which are not directly related to the charged crimes but tend to prove other facts at issue in the case.
When we look at whether or not we “need” the defendant’s testimony, I think we need to look at two different things. First, we look at the state of the evidence. Do we need to try and refute any element of any crime charged? And Second, do we need to appeal to the emotions of the jurors and hope we can garner some sympathy by putting the defendant up on the stand. Then, we must balance these factors against the danger of cross examination. In Murray’s case, I believe the danger of cross examination by a skilled prosecutor like David Walgren would likely outweigh the benefits of putting him up on the stand. Further, I am simply not sure that Dr. Murray would be able to garner much sympathy from the jury. Jurors often have difficulty relating to certain things. I think a jury might dislike the fact that Dr. Murray was getting paid so much money for his private treatment of Michael Jackson. Certainly, Dr. Murray would open himself up to attach based on his testing and phone calls near the time of Jackson’s death.
Finally, before putting a client on the stand, I always like to conduct a mock examination. Usually, I play the prosecutor and have an associate perform the direct examination. Together, the client, and the lawyers get to assess how they feel the client comes across on the witness stand. With this I am always conscious of the advice of one of my law school professors: “Don’t leave your common sense at the door.” As a criminal defense attorney, we have to use all of the tools we were given in order to achieve the best results for our clients. One of the tools that we have is our gut instinct or response to a situation. I ask myself how I feel about my client testifying. That usually answers the question for me and for my client.
If you have questions about jury trials or any other criminal defense matter, contact me: