During the Sandusky trial, MaleSurvivor Communications Committee Chair Thomas Hodson (who is himself a former attorney, trial judge, and is now a journalist) will be sharing with us some helpful explanations of the stages of a criminal trial. Our hope is that sharing this information here will help people better understand what is going on behind the scenes, and eliminate some of the confusion and uncertainty that will inevitably come up. Please follow our Twitter (@malesurvivorORG) and Facebook pages for more information and reactions as well.

Sandusky Trial – Will Defendant Testify?

It is clear from the defense, to date, that the Sandusky defense team is running on two parallel tracks: character witnesses to say Sandusky is a great guy and attacking the credibility and motivation of the state’s witnesses. But, the real question remains: Will the defendant testify on his own behalf?

That question is at the heart of almost every high visibility case and this one is no exception. Jurors, journalists, and court spectators want to know whether the focal point of this trial will go under oath and answer questions about his behavior – and subject himself to cross-examination by the state.

Please remember that legally, the defendant is NOT required to take the stand in his own defense. And, if he does not, the judge will instruct the jury it may not consider that fact for any reason. There can be NO inference drawn from that scenario – one way or the other.

However, if the defendant does take the stand, then the jurors may consider his testimony like any other witness and assign what credibility to it as each juror may see fit. The defendant would use this opportunity to explain away the testimony of the state’s witnesses and the prosecution would use its cross examination to discredit the defendant even further – diluting the overall defense.

This is a huge decision for the defense attorneys. Some say the defendant’s silence would underscore his guilt in the court of public opinion. However, others would argue that his testimony would allow him to be cannon fodder for adept prosecutorial cross-examination – a chance to do as much or more damage as the Bob Costas, NBC interview.

Most defense attorneys will leave the ultimate decision up to the defendant but advise the defendant of the pluses and minuses of each strategy.

Some attorneys also feel very strongly about one or the other position and if the client refuses to follow that position – then the attorney may inform the judge (outside the presence of the jury) that he/she would feel that he/she could no longer go forward representing the defendant.

The judge must then decide whether counsel would remain or new counsel would be allowed. If forced to go forward, then the defense might ask for a mistrial or use that as a basis for possible appeal. It could be a portion of the overall defense strategy.

This, most assuredly, is one of the most critical decisions in the trial for any defense team. Some would argue it is the ultimate strategic decision in the trial and all others pale by comparison. Some court observers believe that it is imperative that the jury hear, first-hand, the defendant’s denials before it can find him “not guilty.”

Others would argue that the defendant, particularly in this case, is such a potentially loose-cannon that it would be reckless to put him on the stand where he may perhaps say something to embellish the state’s case.

I believe that since Sandusky has spent his life around football, being a coach, and competition, it would be difficult for him to resist getting into the battle himself and speak on his own defense. Trials, in a sense, are the ultimate competition and it may be difficult, if not impossible, for Sandusky to watch the competition being played out while he remains on the bench – so to speak.

Whatever the decision, it is guaranteed to be one of the most dramatic of the trial and be open to second-guessing by every court observer and pundit.


Edited by Chris Anderson (06/19/12 12:06 PM)