The Knife’s Edge of a Client’s Testimony in a Criminal Case

Over the past several weeks the American public has seen the drama of criminal trials take center stage in our daily stream of news coverage.??The trials of Kyle Rittenhouse, the Ahmed Arbery murder, and the fraud trial of Elizabeth Holmes have each featured the testimony of the criminal defendant as the most prominent feature of the defense case.??I think most everyday Americans see this as a logical thing for a defendant to do.??After all, if you didn’t commit the crime, why wouldn’t you take the stand and say so??

The unfortunate reality is the current sentencing regime, particularly in federal cases, imposes significant penalties on defendants who testify in their own defense and are convicted anyway.?

Lawyers who practice criminal defense know it’s not that simple.??

First and foremost, the Fifth Amendment of the U.S. Constitution gives a citizen the right to say nothing when the government charges them with a crime.??It’s an important protection and not just because it’s bound up with other bedrock principles like the presumption of innocence.??Experienced criminal defense attorneys can tell you stories of clients who were innocent, but whose decision to testify at trial and subject themselves to an aggressive cross examination, made them?appear?guilty.??In other words, even if a client’s testimony does nothing to damage the evidentiary basis of a defense strategy, a client’s performance can tip the scales toward conviction. This happens because testifying in one’s own defense is a grueling endeavor and almost always occurs at the very end of the trial when the client has reached peak levels of emotion, stress, and exhaustion.??Between birth and death, it’s the greatest moment of human vulnerability in a person’s life.?

It’s also true that a client’s testimony can further the defendant’s case and aid in a defense verdict.??Kyle Rittenhouse is an example, but not a great one, quite frankly.??I think his testimony helped but the objective evidence of self-defense there was quite strong.??

The decision to put the client on the stand often makes sense in the white collar cases I defend, because the client usually makes a good impression.??They’re smart, successful and the entire case typically depends on whether they had some bad subjective “intent” when they did the things the government claims are criminal.??Such a client, for good reason, will often conclude that taking the stand and looking the jury in the eye is something they have to do to win.??It’s hard to doubt them, but it does not always work.???

So, I think our Founders got it right when they drafted the Constitution to obligate the government to meet its burden of proof without requiring a word from the human being on trial.???However, the unfortunate reality is the current sentencing regime, particularly in federal cases, imposes significant penalties on defendants who do testify in their own defense and are convicted anyway.??It does this in two ways.??First, the United Sentencing Guidelines (“Guidelines”) automatically impose a two to three-level sentencing range increase on any defendant who is convicted after exercising his or her right to a jury trial.?Second, the Federal Sentencing Guidelines also allow the government to seek an enhancement for “obstruction of justice” for a defendant who takes the stand to deny specific elements of the crime, but is convicted by the jury regardless.??Let’s take these two issues in turn.??

The Trial Penalty

Some might say this is a guilty plea?reward?rather than a trial?penalty.??This has some logic, because the disparity of a conviction after trial versus a conviction after a plea comes from the Guidelines providing for a reduction in a defendant’s sentence for “acceptance of responsibility” if the defendant pleads far enough in advance of trial to save the resources of the prosecutors and the court.??Criminal defense attorneys do not balk at the reduction in their client’s sentence.??But consider the disparity this creates.??The Guidelines reduction for an early plea can approach 50% of an individual’s jail time.??On the other hand, a defendant who exercises his or right to a jury trial under the Sixth Amendment sees their sentencing exposure nearly double?with no other aggravating factors at issue.?

The Testimony Penalty

This risk is exacerbated if a defendant also takes the stand a trial.??The Guidelines allow for a sentencing enhancement of two levels for any defendant who “obstructs justice.”??This is sensible, because the system should disincentivize behaviors like witness intimidation, evidence tampering, or outright lies on the stand at trial.??However, the obstruction enhancement, which can add multiple years to an individual’s sentence, is often imposed on defendants for simply testifying in their own defense and losing at trial anyway.??

The United States Supreme Court has repeatedly stated this is not the way the system is supposed to work.??The Court has expressed concern that adding an obstruction enhancement whenever a defendant testifies?creates “grave constitutional concerns” and improperly chills a defendant’s right to testify in their own defense.??See?United States v. Grayson,?438 U.S. 41, 55 (1978);?United States v. Dunnigan, 507 U.S. 87, 95 91993).??The Supreme has further held that the application of the obstruction-for-perjury enhancement is not appropriate for mere general denials of guilt or in instances where the jury’s verdict comes down to a resolution of esoteric concepts such as a defendant’s state of mind or intent. “Testimony may be truthful, but the jury may nonetheless find the testimony insufficient to . . . prove lack of intent.”

Testifying in one’s own defense is a grueling endeavor and almost always occurs at the very end of the trial when the client has reached peak levels of emotion, stress, and exhaustion.??Between birth and death, it’s the greatest moment of human vulnerability in a person’s life.?

Despite these warnings from the Court, it’s been my experience that the obstruction enhancement is frequently applied to defendants who lose their cases after going to trial and testifying, even if the testimony does not refute the core facts of the case.??Where the obstruction enhancement is added to the trial penalty described above, the Guidelines can increase a defendant’s sentence exponentially.?

In the case of Elizabeth Holmes, such enhancements could add more than a decade to her sentence.???

It is hard to square the drastic consequences to defendants for testifying with the Bill of Rights, but that’s a discussion for a longer article and a different day.??The point here is to stress how difficult it is for lawyers and clients to decide whether the client should testify or not.??Many clients fear the lifelong “What if?” in the event they do not testify and are convicted anyway.??But they must also face the sober reality that doing what the Constitution guarantees them the right to do—take the stand and tell their story—increases their exposure to jail time.??