Sunday, April 2, 2006

Will Lay & Skilling Testify? And Who Else?

The most talked about question these days is whether Ken Lay and Jeff Skilling will take the witness stand.  Obviously as criminal defendants they do not have to present anything.

The Wall  Street Journal has a chart here that looks at some recent white collar cases, telling whether the accused testified and the outcome in each trial. Some who did not testify were convicted and others were acquitted - so there is no statistical correlation here.  There are only two acquittals on the list and both did not testify.   The Journal here, also has a poll asking readers whether attorneys for Lay and Skilling should advise them to take the witness stand. As of 12:30 A.M. the voting was at 76 people with 54% saying "no" and 46% saying "yes".  As the number responding to this poll rises, it will be interesting to see what readers of the Wall Street Journal think about whether Lay and Skilling should take the stand.

To me the more interesting question rests with other possible witnesses that the defense may present.  The prosecution presented a simplified case, not calling many witnesses.  Based on lessons learned from prior white collar cases, this is a smart move.  But as the defense starts, the question will be whether the prosecution presented enough. Also, will the prosecution be able to rehabilitate their case after the defense concludes.  Clearly intent and credibility of witnesses will be key factors in this case.  But to what extent will the defense be putting the government or others on trial? Will there be claims of Enron failing because of bad press and the market losing confidence (see AP here) As we near April 15th, tax day, is this a good time for the defense to blame the government?


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