Tsarnaev: To testify or not to testify, that is the question

Tuesday, January 13, 2015

Good morning:

The Fifth Amendment provides in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

Dzhokhar Tsarnaev Death Penalty Trial Started Today

Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Plea Bargaining in Capital Cases
Tsarnaev: Death penalty cases are won or lost during jury selection

20 Responses to Tsarnaev: To testify or not to testify, that is the question

  1. Malisha says:

    Fogen’s parents should be sued for the slander of calling honest, upstanding, concerned citizens a “Lynch Mob.”


  2. Malisha says:

    It’s also about control, pure and simple. Even the civil rights concept as it flew briefly through this country (on its migration) was based on control. It was going to be: “Now we LET you sit in the front of the bus because we’re ‘TOLERANT’ of you.” The very word “tolerant,” which pervaded the civil rights era, was a tell. What were we exalted whites supposed to “tolerate”? Non-whiteness? Sullenness? Ungratefulness? The striving of our natural inferiors to emulate us? Some perceived subterranean jealousy of our inherent default correctness?

    So long as the benevolent white guy could hand out rights to respectful conservatively-clad quiet “minority members” and bestow upon prim and attractive females wearing appropriate shadow-suit uniforms (announcing their sexual non-aggression), he was being admirably TOLERANT. This word preceded the word “diversity” and it acknowledged that there was a white-guy judgment being made and deferred to at all times. It is now, and always was, about control. Who controls the resources (the “giving” white guy who, because he is the benefactor, must naturally have the final say about how much and to whom to “give”) controls the people, and exerts the most control over those who have the least resources to start with.

    • MDX says:


      Who gave the right for another to determine how I should live?

      And racism is a subset of the regimentation that the “good people” think makes the world so good. Is that why drug use is so high in the USA? Because we are so happy?

      I think Charlie Chaplin hit it long ago:

      Soldiers: don’t give yourselves to brutes, men who despise you and enslave you, who regiment your lives, tell you what to do, what to think and what to feel, who drill you, diet you, treat you as cattle, as cannon fodder!

      Don’t give yourselves to these unnatural men,
      machine men, with machine minds and machine hearts.
      You are not machines!
      You are not cattle!
      You are men!!
      You have the love of humanity in your hearts.
      You don’t hate, only the unloved hate.
      The unloved and the unnatural.
      Soldiers: don’t fight for slavery, fight for liberty!

  3. MDX says:

    Holy Mary, Mother of God!

    Look at a complaint that Garner filed, in 2007.


    Very disturbing quote:

    ‘I complied with no problem. [The officer] then patted me down by ways of going through my pockets and socks and not finding anything illegal on my person. [The officer] then places me in handcuffs and then performs an cavity search on me by ways of ‘digging his finggers in my rectum in the middle of the street.’ ”

    Garner claimed the officer unzipped his shorts, and pulled out and inspected his genitals “in the middle of the street, all the while there are people passing back and forth. I told [the officer] to stop and if he wanted to do a strip search on me I’m willing to go to the police station if he wanted to because I had nothing to hide, my request was ignored.

    “I then told [the officer] that I was fileing charges for him violating my civil rights, I was then hit with drug charges and told by [the officer] ‘that I don’t deserve my city job due to the fact that I’m an convicted felon on parole.’ (I work for the New York City Park Department.”

    Under the “injuries” category, Garner claims “the injuries I received was to my manhood in which (the officer) violated” through the search of his rectum and genitals “for his own personal pleasure. (The officer) violated my civil rights.”…’

    And we know for a fact that Panteleo, the man who choked Garner, cost NYC plenty when he had a suit filed against him for publicly inspecting two black men’s “stuff”.

    What’s up with this genital humiliation by the NYPD?

    To me, it points to men with massive sexual insecurity issues,

    • Malisha says:

      I believe they killed him BECAUSE of the civil rights violations they had previously committed against him; I believe they realized that in this time of heightened awareness of police violations of citizens’ rights, he would be able to get assistance with a renewed civil rights complaint, and they didn’t want that to work out. I believe that, in a sense (“I better kill this kid so he won’t tell them what I did”) it was like the Trayvon Martin murder case in that respect. And these “stop and sexually assault” actions are beginning to show and attract a kind of attention the police can’t just laugh away.

      “Stop and rape” was always a way to keep females in their place when there was a social movement toward equality; “stop and sexually search” seems to be an analogous behavior, practiced towards a class of people the dominators want to keep “in their place.”

    • a2nite says:

      @ MDX

      Their penises are small & don’t work. They’re jealous.

      Humiliating black men is a common problem for the evil white supremacist police.

      If the police want to sexually harass, they can because they don’t work for us.

      They’re evil & they have permission from they masters the evil white supremacist plantation class.

      I’m just guessing.

      • MDX says:

        You are correct.

        The Democrats, with Johnson fulfilling the wishes of the liberal wing, thought that passing Civil Rights, would seal the North, while conceding the South. It was part real desires and part a political calculation.

        To counter, the Republicans went on and on about the scary black male living in the urban core out to get whites, thus leading to the rise of law and order Reagan Democrats who fled to largely white suburbs wherein John Law put a beating on any black male who dared go out there.

        The Liberal White Democrats, living up to the contempt Richard Wright levelled at them long ago, instead of calling the BS for what it is, became third way tough on crime (read as rousting black males is ok) Democrats because, in their heart of hearts, many do harbor negative racial stereotypes, but are to self-absorbed to admit it.

        I had an experience with one of these “liberals” that was creepy. he knew I date, and eventually married a black women. So he started asking all sorts of sexual questions that were clearly based on racist stereotypes.

        And if I remember my reading of Native Son, the boy friend of the white girl asked Bigger Thomas all sorts of creepy questions.

        A liberal fake is opened minded because they “accept” that “those people’ are ‘that way”.

        How about seeing and individual for who they are?

        And another one of my moron white associates actually asked one of my long time black male friends if he was from Hawaii because he spoke so well.

        I guess I am saying you can say FTP to your hearts content because you have earned that right the hard way.

  4. Malisha says:

    Ultimate irony: police shoot their own guy, who was undercover!


    He’s in critical condition. This time I don’t guess we’ll hear about what a thug he was and how he was about to kill the shooters and they fired to save their lives from this murdering marauder, huh?

    The police are so dangerous they’re not safe around each OTHER!

  5. Malisha says:

    OT, but this report tries to minimize the prosecutors’ guilt by showing that ALL WITNESSES tended to lie at the grand jury in Ferguson. Bland statements about Witness 40 “admitting she got SOME of the details from news reports” fails to point out that she just plain was NOT THERE and made the whole thing up. Contrasted to that, they pick on “lies” that are mere inconsistencies.


    I hate that the press is so wiling to promote lies and dishonesty on the part of public officials. They ALWAYS cover asses. Oh the stench!

    • MDX says:

      How would AC know that the exact truth is in order to discern a lie vs. a perception based on location?

      And as you point out, 40, not being there is NOT an inconsistency, it is a LIE.

      For example, a witness in a car who claims to have saw Brown make a rush was viewing the event from a location more than 200 feet behind Wilson. From that POV, it is nigh on impossible to discern the velocity of an object moving towards or away from the POV in that the eye can not rely parallax cues. Instead, their mind might have interpreted arm movements as indicia of ground motion.

      Now, a person with a tangential POV can more reliably discern velocity. More likely, if they are closer.

      And that’s what a trail and experts are for.

      BTW, I am well versed in target detection systems utilizing either passive or active systems.

      And this brings up another failure in the Zimmerman trial by the media.

      The Washington Post had audio experts and the FBI examine the recorded media.

      The experts used advanced spectral analysis to determine that there were two distinct signatures with the last scream being distinct from the ask for help that Zimmerman admitted to,

      They could not make a positive match.

      The FBI could not make a positive match,

      So the Post, to be objective, said no conclusion could be made.

      Not true.

      A positive match requires an very good a priori sample of the individuals in question. However, a unique spectral signature a conclusive that there were two individuals speaking and screaming and, a such, would have indicted Zimmerman as not the source of the scream.

      How does the Right Wing, who worship our killing machine think we prevent one of our homing torpedoes from not hitting a friendly vs. a foe?

      Well duh, the torpedo has a memory with foe “signatures” stored.

      It is a very precise science based on harmonics. A human creates a noise with an amplitude vs. time signature that, when transformed to the frequency domain will yield a unique set of frequency spikes. Hell, science can use this to discern a fake Stradavarious from the real thing.

      But no, we have B34 with the “space lawyer” husband who “believed” the ‘Nam medic.

      As a child brought up in the 1960s to revere science, I cry for the land of abject stupidity that the Right Wing has created.

      Back to Ferguson.

      A map of where the witnesses were located and what they saw is essential to trying to find ‘the truth”.

      • Malisha says:

        Oh they used for examples the fact that two of the witnesses who SAW Brown get shot had admitted, on the stand (being cross-examined by the prosecutors of course) that they “enhanced” their stories. How? One said she saw Brown on his knees before the fatal shot was fired, and later admitted (under aggressive cross-questioning) that she didn’t see him (in that split second) on his knees. Another said he saw something he later admitted was embellished. He “just wanted to be a part of something” or some equivalent bullsh#t. So they take a few little inaccuracies or embellishments on the part of the 16 witnesses who really would have been able to support indictment, and use them to dilute the fact that the only witness who testified to the same story as Killson was not even there, and was just a miscellaneous racist liar. I don’t just think the prosecutors LET her testify for them; I believe they planned out her testimony with her from the inception, that they wrote her “diary” with her, that they rehearsed her and rehearsed her, and that they are still working with her on damage control.

        • MDX says:

          It is a great sleazy tactic. They know that there will be racists in the GJ predisposed to the view that “those people all lie” and that it is the honest white knight’s word vs theirs. So they get a fabricated cock and bull story by 40 to give the racists something to hang their hat on.

          And they used scare tactics to drive off or demean the white construction worker who, IMO, made an excited utterance on camera that I would give a lot of weight to.

          Of course, after determining that the blood trail and Wilson’s own words prove that Brown closed at a rate of 2mph, the “bull rush” becomes bull shit.

          There is obviously one grand juror who wants to talk about what went on.

          I would not doubt that there were a few B37 types who locked horns with honest people o n that jury.

          • Malisha says:

            Also, remember that a grand juror is allowed to ask her OWN questions at any time. I will BET that the Ferguson GJ foreman (always chosen by the prosecutors) worked with the prosecutors to prevent anyone rational on that GJ from getting the right questions in. There is never a shortage of B37 types and there is never a shortage of bullies, and when bullies find themselves in a situation with positive reinforcement, they swell up and increase their abusive behavior.

          • MDX says:

            My mother went deaf at age 3 and had a cleft palate. She overcame all that to be able to lip read and voice communicate with the hearing world.

            However, she was described as sounding “retarded” by the ignorant.

            So you can see how it would have flown, if I were on that jury.

            My stock response to a person who said my mother was “slow”:

            “only till we turn on Jeopardy”.

            And I really loath West.

  6. bettykath says:

    OT update:

    Two police officers in Albuquerque, New Mexico, will face charges for killing a homeless camper, their lawyers say.
    Former detective Keith Sandy and officer Dominique Perez will face a murder charge in the death of James Boyd, 38.
    Their lawyers argued the two will be cleared of wrongdoing.
    The fatal shooting in March last year sparked city protests, some violent, and came amid a federal investigation into the police department’s practices.
    A year-long US investigation found Albuquerque police had inappropriately killed suspects and used more force on those with mental illnesses.
    Protests against the city’s police department happened before nationwide protests over the shooting deaths of unarmed black men and women by police in various US cities.
    The Albuquerque police department has had more than three dozen police shootings since 2010.
    The justice department ordered the city to reduce the use of deadly force in April, but another woman suspected of stealing a lorry was shot and killed weeks later.
    Protests in Albuquerque, New Mexico in March 2014 Between 2010 and 2014, 25 people were killed by Albuquerque police officers
    Boyd was killed in the foothills of the Sandia Mountains on the east side of Albuquerque following a stand-off.
    Protests against Boyd’s killing occurred after a video emerged of police shooting him, filmed from a helmet camera.
    In the video, Boyd appears to be surrendering when police shoot a stun grenade at him.
    After the smoke clears, Boyd holds two small knives in his hands and police shoot him several times after yelling at him to get on the ground.
    Police then tell him to put his hands out to the side and drop the knife, to which Boyd replies he can’t move.
    Lawyers for Mr Sandy and Mr Perez were confident their clients had done nothing wrong.
    “To the contrary, he followed his training and probably saved his fellow officer’s life,” said Sam Bregman, Mr Sandy’s lawyer.
    Luis Robles, Mr Perez’s lawyer, said he was “confident that the facts will vindicate Officer Perez’s actions in this case”.
    City officials recently signed an agreement with the justice department that requires police to provide better training for officers and dismantle troubled police units.

    • Malisha says:

      Why isn’t this procedure used more often? When somebody kills somebody, they should be allowed to sign an agreement to get a better education so they don’t do that again. It’s a GREAT idea. We really need to use these wonderful government ideas to better advantage!

      • gblock says:

        I don’t see why you are automatically dismissing the idea. The training seems to be intended for the whole department, not just for those cops involved in the shooting incidents. Considering the high number of shooting cited for the department, It seems reasonable to me that a contributing factor might be that they are not getting enough training and practice in dealing with high-stress situations.

        Of course, part of the overriding reason for such incidents is that police work probably appeals to individuals who like the idea of being the feared, respected, authority figure and/or are attracted to the “chasing bad guys” image of police work. It may be difficult to weed out such individuals in that it may be difficult to identify them until they are seen in action.

        There is also the issue of the culture withing a police department, which can only be dealt with from the top.

      • gblock says:

        OK, I guess you are saying that extra training is not going to help unless there is also less tolerance for shooting incidents and more disciplinary action when they occur, and I have to agree that this is the case. But I think that additional and appropriate training may also be a necessary step.

  7. Malisha says:

    I can’t imagine I would let him on the stand for the simple reason that a death-sentence-qualified jury is already a peculiar kind of jury. They are predisposed to wanting to see the person dead. I doubt there is any positive emotional reaction to be expected from any juror on such a jury if the defendant is put on the stand because they are likely to regard his testimony as a sort of criminal attempt by him to trick them out of understanding what really happened. I may be wrong, but that’s how I would see it, I think. It’s a very hard question.

    • Annie Cabani says:

      I agree that it’s a very hard question (and I’d bet money that the professor does, too). Other problems with death-qualified jurors are that (in my humble and constitutionally-protected opinion) people who are comfortable with the imposition of a death penalty tend to:

      > view issues more simply and in black-and-white, as opposed to acknowledging and struggling with complexities and shades of grey in life;

      > be comfortable judging others and feel certain about and confident in their judgments, rather than worrying about the “what-if” consequences in the event their judgment might be erroneous;

      > have considerable respect for and faith in established societal institutions, such as LE and the justice system, but far less or no tolerance for people who “buck” the system or “place themselves” in positions contravening such institutions.

      I would bet that death-qualified jurors are heavily comprised of people falling in the “SJ” category of Myers-Briggs temperaments (which they also tend to scoff at and misunderstand, regardless of how intelligent they may be), which makes up about 45% of our population. See, http://www.davidmarkley.com/personality/personhome.htm

      IN SUM: These aren’t folks I’d feel comfortable judging me – even though it’s a fact of life in almost any workaday world, including mine. Workaday reality or not, however, I would be extremely hesitant to put Tsarnaev on the stand in front of these folks during the guilt phase. On the other hand, my instincts tell me that death-qualified jurors might REALLY want to hear from him or else assume the worst – no matter what the judge instructs.

      So, how’s that for a NON-answer?? 😉

      In my defense, I’ll beg off by admitting that I have no idea what the defense might even “have” to offer by way of his testimony.

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