CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 30, 2004

CNN: When to Have your Client Testify

Julie Hilden of FindLaw has a column in CNN proposing that Scott Peterson should have testified, either at trial or at the sentencing phase. [Jack Chin]

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It is an interesting piece. But the calculation of not having Peterson testify may not have been particlarly nuanced. However weak his defense sounded through the mouth of his lawyer, it may well have sounded considerably weaker through his own mouth, particularly during cross-examination. While Hilden is correct that Peterson might have been able to concoct explanations for some of his conduct, that also raises ethical issues for the defense attorneys if he has previously given them a different explanation for his conduct.

Had Scott been my client, and had I been reasonably assured of his innocence, I would likely have urged him to testify so as to clarify what happened, and to explain away the relatively damning series of "coincidences" and questionable conduct which ultimately convinced the jury of his guilt. If he professed innocence while falling apart during even a moderate mock-cross examination, the decision would obviously be more difficult. The decision would also have been complicated if his story was somewhere in the middle - e.g., he killed his wife in a fit of rage, and then came up with a scheme to dispose of the body - where his truthful testimony might have damned him to a long prison term, but might spare his life. Perhaps he preferred to roll the dice.

Posted by: Aaron | Dec 30, 2004 11:23:05 AM

Good points. However, he was represented by lawyer who didn't even show up at the reading of the verdict--in a capital case! So I wouldn't be surprised if somehow a misjudgment was made.

Posted by: Jack Chin | Dec 30, 2004 12:38:04 PM

That has nothing to do with it. Now that the verdict is in everybody is a armchair quarterback. It is not unresonable nor is it unusual for the attorney to not be present during a verdict. It is prefered to be there of course but it can't always be possible. Needless to say the attorney is not all that useful at a verdict and he may have had a responsibility to another client at that point. I too think that not putting Scott on was a weakness but as the first commentor points out there are many things that go into this decision and it will not be known how it was decided until someone writes his tell-all book about it.

Posted by: Anthony J. Colleluori | Jan 1, 2005 7:02:36 AM

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