KENOSHA — To testify or not to testify is one of the most difficult decisions defendants and their attorneys face in a criminal trial.
TMJ4’s Rittenhouse trial expert says in most cases, criminal defendants do not take the witness stand because the risk often outweighs the reward, but in cases where the defendant is claiming self defense, it can be pivotal in convincing the jury of their innocence.
In every criminal trial, the defendant has the constitutional right to testify or to remain silent. Kyle Rittenhouse took the witness stand on Wednesday to make his self defense claim in front of a jury that will ultimately decide his fate.
“You intended to kill him, correct?” asked prosecutor Thomas Binger. “I didn’t intend to kill him, I intended to stop the person who was attacking me and trying to steal my gun,” Rittenhouse replied.
Patrick Cafferty is a criminal defense attorney in Racine. He says defendants face several risks by taking the stand.
"I think it's such a difficult decision for defense lawyers because many of us have seen it go south,” he said.
Cafferty says the biggest consideration is it opens the door for cross examination by prosecutors. If the defendant has a prior criminal record, that could be used to question their truthfulness.
Cafferty believes a majority of defendants would struggle to remain calm and articulate under intense questioning and stress.
"Most defense lawyers will try to conduct a defense without using the client on the stand,” he said. “With that said, self defense cases often lend themselves to the need for the defendant to testify because what's so important in a self defense case is establishing that the defendant believed that he really didn't have a choice other than to use the force that he used.”
A Cornell Law Review study of more than 300 criminal trials found that 77 percent of defendants who testified were convicted. Conversely, defendants who remained silent were found guilty in 72 percent of those trials.
High profile cases have offered different results. George Zimmerman did not testify when he faced life in prison for the 2012 killing of Trayvon Martin. Zimmerman’s attorneys made their self defense claim using other witnesses and he was acquitted.
Former Chicago police officer Jason Van Dyke testified in his murder trial to claim self defense when he shot a person while on duty in 2014. Van Dyke was convicted and sentenced to 81 months in prison.
Cafferty says Rittenhouse and his attorneys won’t know whether they made the right decision until after the verdict is read.
“If the verdict comes back not guilty then everyone's going to say, 'wow, he did the right thing and the jury believed him’ and away he goes,” Cafferty said. “If he's found guilty then people may say, ‘he made a tactical error.’”