Let the Client Explain It on the Stand

You do not always have the option, in criminal defense law, of putting your client on the stand. Sometimes the prior record of your client, which can be brought out, is entirely too prejudicial to let the jury hear. However, if you can, I believe it is always a good idea. This echoes the sentiments of the late and great Edward Bennett Williams, who was also a proponent of letting the client explain on the stand what happened .

I once was able to get a not guilty verdict for a client who was charged with refusal DUI (refusing to take the DUI test, which gives you a conviction the same as if you had blown over the limit) and possession of marijuana, but not an open container violation by putting my client on the stand and letting him tell his version of the facts. (In a Mississippi "dry County", you may transport alcohol only if it is closed and sealed. Having an open container of alcohol is a crime in those counties.)

Russell, my client, was pulled over in Rankin County and refused to take the DUI test. They found an open beer in his car, along with some marijuana. We went to trial in the case before a notoriously strict judge in a very pro-prosecution Mississippi County. However, Russell had a reasonable story as to why he refused to take the DUI test. He was a black man, being arrested late at night in a white majority county by white police officer. He told the jury that he feared the actions the officer might take on the side of the road, and only wanted to be taken to an area, such as the police station, where there were witnesses. For whatever reason, they did not give them an opportunity to take the DUI test at the station.

The jury believed Russell's story. Even though, technically, he did in fact refuse to take the test, the jury believed that he would have taken the test under the right circumstances and so felt he did not willfully refuse to take the DUI test. They also found him not guilty of possession of marijuana, as he claimed it was not his but a friend's. This version of the facts, which seems on its face very weak, was believed because his credibility as a whole made that portion of the story believable. There was no way to get around the open container, as he truthfully admitted that the beer was his.

The moral of this story is that if you can put a credible client on the stand to explain what happened, do it. The jury, I believe, is predisposed towards the prosecution, wanting to get criminals off the street. They also do not understand the reasoning behind not getting up and denying the charge. Like most criminal defense attorneys, I do not believe a jury can put aside the prior convictions for crimes, particularly if they are similar crimes, and focus just on the facts of the case before them. This eliminates putting your client on if they have any type of serious record. But if there is some way to put the person on, do it, because a jury might believe "it wasn't me, it was some other guy" if the witness' demeanor and credibility is good enough.