Defendant’s Right to Testify… Whenever? Also: TikTok Jurors

I just caught up with the denial of Donna Adelson’s motion for a new trial. The defense brought up numerous claims, the most interesting of which were jury contamination and a violation of the defendant’s right to decide whether to testify or not. Let’s tackle the latter one first. You can see for yourself how things went down as the defense wrapped up its case:

When watching the trial live, I empathized with the judge’s impatience, but worried that he might not be cautious enough to avoid being reversed on appeal. I’ve now caught up with some commentary about the trial, including this excellent analysis by Peter Tragos:

The transcript of the sidebar conversations, as well as the colloquy Judge Everett had with the parties the morning after the defense rested, have reassured me that the defendant really got all the possible leeway and opportunities to make an informed decision whether to testify. Thank you, Mr. Tragos!

But this brings up a different issue: how do we feel about the defendant testifying last at their trial?

The idea that the defense has the freedom to fashion trial strategy as they see fit is a cornerstone of criminal defense, but in other countries there are special rules about testimony. In Israel, and I bet in other former British colonies as well, the rule is that the defendant must testify first. This makes a lot of sense: the defendant is the witness that has the most at stake, and they are also the only witness who actually gets to sit in court for the entire trial (all other witnesses may not sit in court when their fellow witnesses are testifying, and the Adelson defense was scolded about this at least twice). This, to me, raises the obvious implication that a defendant who testifies after the other witnesses can make strategic decisions. In fact, it’s so obvious that commenting on it to the jurors is not considered a violation of the defendant’s right to testify. In Portuondo v. Agard (2000), the prosecutor stated the obvious in closing argument:

You know, ladies and gentlemen, unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies.

That gives you a big advantage, doesn’t it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence?

He’s a smart man. I never said he was stupid ….

He used everything to his advantage.

The Supreme Court found that these words did not unlawfully infringe on the defendant’s right to testify:

[W]e see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness’s ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate-and indeed, given the inability to sequester the defendant, sometimes essential-to the central function of the trial, which is to discover the truth.

If we, too, had a procedural rule that the defendant must testify first, we would do away with the need for such warnings and would also curb the strategic/manipulative potential of having the defendant hear other witnesses.

Now, let’s turn to the TikTok issue. I agree with Tragos (seriously, listen to the entire thing – he does a great job pulling relevant sections from the transcript!) that the judge’s instructions to the jury allowed them to share the fact that they were on jury duty with “anyone who needs to know where you are,” and that he also told the jury not to disclose any information about the case itself. But I have to ask myself what drives a person who heard these warnings to make a TikTok about the general experience, albeit not mentioning the case, after being impaneled. Come on, people. You are indeed living your life even if you’re not reporting every second of it on social media. I don’t think this will lead to a reversal on appeal, but for heaven’s sake, why take the risk?