Maine news, sports, weather from Portland Press Herald / Maine Sunday Telegram, Portland, Maine

February 7, 2012

Taking the stand a balancing act for defendants

Testifying in your own defense is a risk – but it's one that can be worth taking.

By Leslie Bridgers lbridgers@pressherald.com
Staff Writer

In a criminal trial, the prosecutor relishes an opportunity to cross-examine the defendant, said Tom Hallett, a defense attorney in Portland.

It's a chance to reveal weaknesses in the testimony and trip up, fluster or anger the suspect.

That's why, more often than not, defendants don't testify in their trials. But there are situations in which it's worth the risk.

Patrick Dapolito, who is accused of killing his wife in 2010, took the stand Monday in his murder trial in York County Superior Court.

J.P. DeGrinney, another Portland defense attorney, said defendants sometimes testify on the advice of their attorneys, and sometimes testify in spite of advice against it.

No matter what, because of constitutional protections, it's the defendant's choice.

"You never really know what's going on behind the scenes," DeGrinney said.

DeGrinney has never defended a suspect in a murder trial. Hallett has done it only a couple of times. But both attorneys said they consider the same factors when advising a client whether to take the stand, regardless of the charges.

"There's a huge balancing act that goes into whether a defendant's going to testify in any case," Hallett said. "The situation is amplified when you've got a serious crime."

For Hallett, it's essential that he believes his client's story.

"You can't put somebody up there to testify untruthfully," he said.

Beyond that, the defendant has to be likable, Hallett said.

"If you have a bright and presentable defendant, a jury wants to hear from that person," he said. "And they can go a long ways toward convincing a jury of their innocence."

A lack of hard evidence demonstrating a defendant's innocence can be a reason to encourage that client to testify, DeGrinney said.

"You just have your client who can tell his side of the story," he said, and witnesses can corroborate various aspects of it.

But if the story is not believable, a defendant who is found guilty can suffer in the sentencing for telling a "fairy tale," DeGrinney said.

"Many judges will consider that a substantially aggravating factor," he said.

Staff Writer Leslie Bridgers can be contacted at 791-6364 or at: lbridgers@pressherald.com

 

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