While the class action and commercial litigation firm, Rodney & Etter, LLC, does not practice criminal law, business clients occasionally can face criminal inquiries and, unfortunately, even criminal indictment and prosecution. With more than 6,000 municipal, state and federal criminal statues, managing criminal liability has become a necessary, though unpleasant, part of business strategy for corporate clients who inadvertently find themselves the subject of criminal investigation despite the lack of intent to violate any criminal laws.
Companies involved in regulated industries such as health care, transportation, or natural resource extraction and processing are more likely to face criminal inquiries and sometimes prosecution than their counterparts in other economic sectors. Common to the successful defense of many of these cases is the cooperation between the company’s corporate counsel, such as Rodney & Etter, and the criminal defense counsel. A successful collaboration may often cause both the civil and criminal lawyers to rethink and re-consider common strategies unique to each discipline. This article, from DecisionQuest and used by permission, explores a very common question: when should the business client testify, or more specifically, what do jurors think about business clients who don’t testify during criminal proceedings.
In a criminal trial, it is difficult to imagine a witness whose testimony would be more important to a juror than the defendant. A defendant who does not take the stand deprives jurors of the opportunity to evaluate his or her conduct, demeanor, and credibility. In the absence of the defendant’s testimony, jurors will fill in the blanks, often making assumptions that can be more detrimental to the defendant’s case than the truth would have been. Jurors take their duties seriously and want to make informed decisions; if they feel that a defendant is interfering with their ability to do so, they could very well hold this against him or her.
Jurors often find it difficult to strike a balance between their “gut reaction” and the court’s instructions. In fact, data collected by DecisionQuest from a nationwide sample of jurors indicate that if a judge’s instructions about the law were different from a juror’s own personal moral convictions, approximately half of jurors would follow their own personal moral convictions. For this reason, it is imperative that attorneys make every effort to understand jurors’ preexisting attitudes, experiences, and beliefs during jury selection, rather than rely on the judge’s instructions that jurors be fair and impartial.
In one of its recent on-line newsletters, DecisionQuest asked its readers the following question:
“Despite the fact that in our legal system a criminal defendant is not required to testify in his or her own defense, when a senior corporate executive does not testify at trial, it is a sign that the executive is probably guilty.”
“As a lawyer, how do you think American jurors feel about this statement?
A. Strongly Agree B. Somewhat Agree
C. Somewhat Disagree D. Strongly Disagree
Seventy-six percent of the attorneys who responded to our survey believed that jurors in a criminal trial would consider a senior corporate executive’s decision not to testify in his or her own defense to be a sign of that executive’s guilt.
Indeed, the majority of non-lawyers we polled said that they would interpret an executive’s decision not to testify as an indication that he or she has something to hide. Notably, many respondents were quick to acknowledge that, as jurors, they would likely be instructed by the judge not to infer guilt or innocence from a defendant’s decision to refrain from testifying. However, these respondents said that, despite the judge’s instruction and their desire to respect the court’s orders, it would be very difficult to overcome their “gut reaction” that the defendant was hiding something. As one respondent put it, “If you’ve got nothing to hide, then why not testify?” Another respondent said she might even infer that the defendant’s lawyer had instructed the defendant not to testify which, to her, would be a tacit admission by the attorney that his client was guilty. Jurors hear so much in the media about a criminal defendant’s Fifth Amendment right against self-incrimination that it is only natural for them to assume that a criminal defendant who does not testify believes he will actually incriminate himself if he takes the stand.
About the DecisionQuest Authors:
Alison Wong is a Senior Consultant in DecisionQuest’s Houston office. She has a background in both psychology and sociology, and received her JD from the University of Texas School of Law. Ms. Wong has considerable experience in research activities and her clients rely on her for strategic recommendations and storyline development. She may be reached at firstname.lastname@example.org.
Blaine McElroy is a Research Associate with the Houston office. Mr. McElroy focuses on jurors’ decision pathways; the individual and group dynamics that present tactical actions or arguments used to manipulate or influence others. He may be reached at email@example.com.
© DecisionQuest 2011. All rights reserved. Reprinted with permission from DecisionQuest. www.decisionquest.com
Rodney & Etter, LLC is a diverse law firm that is recognized by its peers as an extremely successful legal powerhouse in the areas of corporate litigation, class action defense and environmental torts. We work with our clients to ensure that juries understand the facts and implications of cases and decisions. Roy Rodney, managing partner, can be reached at firstname.lastname@example.org.