Some Thoughts on Serial

I've been listening to the Serial podcast.  It is an interesting idea, a couple of reporters that investigate a murder from 1999.  It is very in-depth reporting, with lots of interviews, court recordings etc.  The part that got me though was when some of the jurors were interviewed.  The jurors tended to believe that the accused should have testified.  They reasoned that no innocent person would not cooperate in their own defense.  The prosecutor cannot mention it at all in his closing argument, arguably it would be grounds for a mistrial and an ethical breach.  Even though the Judge is required to read jurors an instruction that specifically provides that the jurors are absolutely forbidden from drawing that inference, it nonetheless tends to happen.  I understand the reaction.  I think people interpret it as the accused must have something to hide if he is unwilling to take the stand.  After all, this is probably one of the most important days of his life, and he is just going to sit there.  What the jurors don't know is that the accused has likely spoken with his defense attorney, at length, on this topic.

I have yet to try a case where the accused has testified, either as a prosecutor or defense.  As a defense counsel, I always left the choice to the accused.  But, I would inform him/her of the potential pros and cons of testifying.  On the pro side, it is a chance to tell your side of the story.  And, importantly the jurors really want to hear that side.  The list of cons is much longer, in my opinion. First, the accused is going to be nervous and scared and that will likely come through in his testimony.  However, the jurors may well interpret that as evasiveness or not telling the truth.  Second, on cross examination, the accused will feel attacked.  This will not be the first time. For the entire time leading up to the trial the accused will likely have been felt like they were attacked by the State.  From interrogations by police officers, plea negotiations and the entire process the accused will feel like it is a "me vs them" situation.  Indeed it is.  The case will be captioned in some form to resemble "the government" vs "the accused"

The other issue is that many accused do not invoke their right to remain silent from the outset.  In many cases the accused will have waived their Miranda rights and often will talk to law enforcement at the outset.  I think prior to becoming an attorney, I would likely have done the same thing.  Particularly if I was innocent.  If someone accused you of something you didn't do, the natural reaction is to explain that they don't have the correct version of events.  Or, their version is incomplete.  The problem is, in most cases what you tell law enforcement can only hurt you, not help you.  Once you are suspected of committing a crime, regardless of how believable your version of events, it is highly unlikely that law enforcement will simply drop the case based on your story.  The danger is that you accidentally remember a detail incorrectly, or your version conflicts with that of a witness (even if your version is indeed the correct one).  People have a tendency to believe a witness, at least at the outset, particularly if the witness has no discernible bias or motive to lie.  The accused has to start from the other end of the pendulum.  Most jurors tend to distrust the accused until his credibility can be bolsters by other witnesses or evidence.

Further, a conversation with law enforcement is not a level playing field.  You have no idea what they know, who they have spoken to or whether they are being truthful.  It is like a novice playing a poker game against an expert and they get to see your cards.  Also, at the end of the game you either break even or lose everything.

Finally, the danger of the accused speaking to anyone prior to the trial is the hearsay exception for admissions by a party opponent.  Generally speaking, a witness cannot testify in court as to what another person said out of court.  There are a lot of exceptions, too many to go into here.  But the big exception is that the prosecution can generally bring in any statement that the accused made.  But only the government.  The defense cannot introduce out of court statements from the accused that are helpful to the case, because at that point those are not admissions by a party opponent.

So if an accused does elect to testify, all of his prior statements that prejudice him will come in.  There will be inconsistencies.  Memories fade, interrogations are stressful.  Law enforcement is permitted to use leading questions.  The ideal case would be an accused that elects only to speak at his trial.  Of course, that rarely happens.