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Michael Jackson and his defense team are about to make one of the toughest decisions that a defense must make in a criminal trial: Should the defendant take the witness stand to testify? Technically, the decision is the defendant’s to make. Although many strategic calls are left to defense counsel, the decision of whether to testify belongs to the defendant. See United States v. Martinez, 883 F.2d 750, 764 (9th Cir. 1989) (“There is . . . a class of constitutional decisions that is preserved for the defendant and for the defendant alone . . . .[T]he decision to take the stand is personal to the accused.”), rev’d on other grounds, 928 F.2d 1470 (9th Cir. 1991). But the defendant’s decision must be made after consultation with his lawyer. See ABA Model Rules of Professional Conduct 1.2(a) (“[A] lawyer shall abide by a client’s decision, after consultation with the lawyer, as to . . . whether the client will testify.”). Rarely is the decision an easy one for counsel or the client. Before testifying, consider a range of factors In deciding whether to testify, the defendant must consider a range of factors: (1) whether testifying will open the door to the prosecution’s introduction of additional inculpatory evidence; (2) whether the defendant is likely to have a believable or sympathetic demeanor on the stand; (3) whether the defendant has a prior criminal record; and (4) whether there really is anything that the defendant can say that will provide a defense to the charges against him. Defendants frequently want to take the stand for “limited purposes.” Having seen other witnesses limit their testimony to discrete issues in the case, defendants also want to take the stand and have limited exposure when they are cross-examined. But it doesn’t work that way. Once the defendant takes the stand to testify, he exposes himself to cross-examination on any issues related to matters raised by his defendant’s testimony. If the defendant tries to curtail cross-examination by invoking his Fifth Amendment right, he may be threatened with contempt or have all of his testimony stricken. It will also be possible for the prosecution to comment on his refusal to answer proper questions. Unlike an ordinary witness who may “pick the point beyond which he will not go,” United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980), a criminal defendant cannot pick and choose issues he would like to discuss in a case. Once on the stand, his life often becomes an open book. As early as 1896, the United States Supreme Court said, “[I]f [a] witness himself elects to waive his privilege [against self-incrimination], as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure. Brown v. Walker, 161 U.S. 591, 597 (1896). Both state and federal courts have long understood this rule to also apply to criminal defendants. For example, in 1877, the Nevada Supreme Court wrote in State v. Harrington, 12 Nev. 125, 130-131 (1877), “Our conclusions are that, if the defendant in a criminal action voluntarily testifies for himself, the same rights exist in favor of the State’s attorney to comment upon his testimony, or his refusal to answer any proper question, or to draw all proper inferences from his failure to testify upon any material matter within his knowledge, as with other witnesses.” In two of the more colorful cases from its past, the 9th U.S. Circuit Court of Appeals denied defendants’ attempts to limit the prosecution’s cross-examination to matters covered by their direct testimony. First, in Diggs v. United States, 220 F. 545 (9th Cir. 1915), the defendant was charged with transporting women across state lines for the purpose of debauchery. The defendant took the stand to testify about his relations with the women in question, but stopped short of giving details regarding the trip at issue in the case. He then claimed that it would be improper for the prosecution to cross-examine him regarding that time period because he did not cover it in his direct testimony. The court rejected his argument. The court noted that a defendant is not required under the law to take the witness stand, but that if he does, he opens himself up to far-ranging cross-examination. “[T]he waiver of the constitutional privilege [against self-incrimination] of a defendant in a criminal case is a complete waiver, and places the defendant in the same attitude as that of a defendant in a civil action who testifies in his own behalf.” Id. at 551. In his concurrence, Judge Wolverton noted: “A defendant cannot tell a half story touching his defense, which is a half story from his standpoint of the merits of the case, then abruptly stop in his course and decline to answer further, and expect to reap the benefit for himself to be derived therefrom.” Id. at 563. Once the defendant takes the stand, he is subject to a wide range of questions regarding his possible involvement in the crime. Only irrelevant questions or inquiries prohibited by the rules of evidence are likely to be barred. A defendant should expect that prosecutors will probe every detail of his story, including the defendant’s possible motivations for committing the offense. This issue of how much a defendant can limit the scope of cross-examination arose again in the famous prosecution of newspaper heiress Patricia Hearst for bank robbery. See United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977). Hearst claimed that Symbionese Liberation Army members brainwashed her and forced her to participate in the robbery. Hearst elected to testify in her own behalf. She described in exhaustive detail how she was kidnapped, physically and sexually abused, and forced to participate in the robbery. She also described how she was forced to travel around the country with her captors until she wound up in Las Vegas. After mentioning her arrival in Las Vegas, Hearst jumped ahead to her arrest in San Francisco a year later. On cross-examination, Hearst refused to answer questions regarding the period between her arrival in Las Vegas and her arrest in San Francisco. She sought an order limiting the scope of the prosecution’s cross-examination. When her motion was denied, Hearst invoked her Fifth Amendment privilege against self-incrimination 42 times during the government’s questioning. The 9th Circuit upheld the district court’s decision. Even though Hearst argued that she had not waived her privilege against self-incrimination because her testimony was limited to the collateral issue of whether her admissions regarding participation in the bank robbery had been made involuntarily, the court of appeals disagreed. It found that Hearst had opened the door to cross-examination regarding all matters “reasonably related” to the subjects covered by the defendant’s testimony. Any other rule would give the defendant “the unusual and grossly unfair ability to insulate himself from challenges merely by declining to answer embarrassing questions.” Id. at 1341-42. Trial judges are afforded broad discretion to determine the bounds of relevant cross-examination. United States v. Panza, 612 F.2d 432, 437 (9th Cir. 1979). Most often, the court expects a defendant who has testified to respond to far-ranging cross-examination by the prosecution. Thus, when deciding whether to testify, a defendant must keep in mind that he or she is likely to become the target of extensive cross-examination by the prosecution. The defendant’s lawyer will have only limited ability to protect him or her on the witness stand. The court is likely to reject objections to the scope of the prosecution’s cross-examination. If a defendant refuses to answer questions, the district court has a wide range of options. The court can: (1) allow the prosecution to comment upon the defendant’s unprivileged refusal to testify; (2) force the defendant to invoke the Fifth Amendment in front of the jury; or (3) instruct jurors that they may consider the defendant’s refusal to answer questions in reaching their verdict. Id. at 437. In extreme cases, the court may also strike the defendant’s testimony for refusal to respond to cross-examination. Before the court chooses this step, however, it should warn the defendant that his testimony could be stricken. Id. at 439. Taking the Fifth: There is no halfway point The Fifth Amendment cannot save a defendant once he or she has chosen to take the witness stand. It can only give defendants who are too nervous to testify, or too guilty to help themselves, an excuse not to testify. See generally Peter W. Tague, “The Fifth Amendment: If An Aid to the Guilty Defendant, an Impediment to the Innocent One,” 78 Geo. L.J. 1 (1989). There is no halfway point. To enjoy the protection of the Fifth Amendment, a defendant must embrace it completely. “The fifth amendment is a sacred shield . . . .However, it is a shield which must be raised by affirmative action. A defendant cannot have it both ways.” McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir. 1982). The greatest help that defense counsel can provide is a frank review with the defendant all of the advantages and disadvantages of testifying. Given Michael Jackson’s odd looks and behavior, the prior allegations against him, and his tendency to say the wrong things, like “I sleep with boys,” there are plenty of disadvantages to putting him on the stand. Yet it is Jackson’s choice. If he feels like he can control himself and his audience, he could decide to take those risks. The one big advantage of taking the witness stand is that Jackson will never have to wonder, “What if the jury had heard my side of the story?” They will hear it and, perhaps, much more than he cares to tell. Laurie L. Levenson is a professor of law, William M. Rains fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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