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Testifying in your own defense: Legal experts weigh in on taking the stand

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Posted at 5:22 PM, Jan 21, 2022
and last updated 2022-01-27 11:53:37-05

MILWAUKEE — In the trial of Theodore Edgecomb, his attorneys said he will testify on his own behalf. Legal experts weigh in on whether that is the right step to take in any self defense case.

In the recent trial of Kyle Rittenhouse, the man who killed two people and injured a third during protests in Kenosha, his defense team said they had no choice. His attorney Mark Richards spoke immediately after the not guilty verdict on Nov. 19, 2021 and said they had done run-throughs of the trial before Rittenhouse took the stand.

Kyle Rittenhouse, center, looks over to his attorneys as the jury is dismissed for the day during his trial at the Kenosha County Courthouse in Kenosha, Wis., on Thursday, Nov. 18, 2021. (Sean Krajacic/The Kenosha News via AP, Pool)

“We had a mock jury and we did two different juries. One with him testifying, one without him testifying. It was substantially better when he testified, and that sealed it. In Wisconsin, if you don’t put a client on the stand, you are going to lose. Period,” said Richards.

Jury consultant Christina Marinakis worked with the prosecution for the Derek Chauvin trial, the former police officer convicted of killing George Floyd. She says when someone claims self defense, they are saying they believe their life was in danger.

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Jury consultant Christina Marinakis worked with the prosecution for the Derek Chauvin trial, the former police officer convicted of killing George Floyd.

“If you are looking into the mind of the defendant I think it is helpful to have the defendant testify,” said Marinakis.

Attorney and CourtTV legal analyst Julia Jenae says even if the jury expects to hear from the defendant, she has seen it work against their case. That happened in the trial over Ahmaud Arbery’s death, a Black man who was killed while jogging in Georgia. She says the jury wanted to hear why the defendant Travis McMichael and his father Greg McMichael along with their neighbor, William Bryan, chased down Arbery and killed him.

“It did seem to draw in the jury. I was inside the courtroom for that to see him tell his story. But based on the verdict they didn’t believe his side of the story,” said Jenae.

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Attorney and CourtTV legal analysts Julia Jenae talks about the risks of testifying in your own defense.

A review of cases by the Cornell Law Review shows whether a defendant testifies or not, there is high chance of conviction.

The study found defendants are more likely, 77 percent, to be convicted in cases when they testify. While in cases where a defendant remains silent, 72 percent of those trials ended in a guilty verdict.

Marinakis says her advice on when to testify comes down to the evidence.

“If there's not a lot of evidence and the government's cases is fairly flimsy, then we'd probably advise against putting the defendant on the stand, simply because government has the burden of proof,” said Marinakis.

“It is always a risk when a defendant takes the stand. Not necessarily when they are under direct examination, but when that cross examination starts, the prosecution can really tear into a defendant's story,” said Jenae.

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