Presenting the Case for the Defense

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 715-744

715

CHAPTER 33

PRESENTING THE CASE

FOR THE DEFENSE

PART A. GENERAL ASPECTS

OF THE DEFENSE CASE

§ 33.01 The Decision Whether

to Present Defense Evidence

In most trials it is not until the conclusion of the prosecution’s case-in-chief and the

court’s denial of respondent’s motion for acquittal (see Chapter 32) that counsel makes

the final decision whether to present defense evidence. Of course, a tentative plan of

the defense case has to be thoroughly worked out before trial; this is necessary for the

adequate preparation of potential defense witnesses; the proposed defense testimony

will also guide counsel’s opening statement, if any, and counsel’s cross-examination and

objections during t he prosecution’s case-in-chief. But, except in a c ase in which it is plain

from the outset that defense testimony is inevitable, counsel should design any opening

statement and any other proceedings that s/he conducts before the end of the prosecu-

tion’s case in such a way as to leave open the question whether the defense will present

evidence.

That question has to be decided at last when the court overrules the motion for

acquittal following the prosecution’s case-in-chief. There are few generalities of any

use to a defense lawyer at this point. Obviously, the weaker the prosecution’s case, the

more difficu lt is the choice, since defense testimony may supply def iciencies in the pros-

ecution’s evidence and bolster unconvincing aspects. How much it will tend to do so

must be appraised by counsel. (In an assault case in which the identification testimony

is flimsy, for example, an effective alibi would probably tip the scales in favor of acquit-

tal; conversely, an imperfect presentation of a self-defense claim would do nothi ng more

than fi ll the gap in the prosecution’s case by proving that the respondent was the perpe-

trator.) In this regard counsel must remember that the prosecutor is going to have the

opportunity to cross-examine the defense witnesses; that the prosecutor can lead them

and hence push them around somewhat; and that—particularly in jurisdictions where

“wide-open” cross-examination is permitted (that is, cross-examination going beyond

716 | Tri al Manual for Defense Attor neys in Juvenile Delinquenc y Cases

the subject matter of the direct and touching anything pertinent to the case)—counsel

may have a good deal to worry about from his or her own erst while supporters.

In making the decision, counsel also needs to evaluate the possible impact of the

presentation of defensive evidence on the disposition of the case if the respondent is

convicted. Defensive evidence that is favorable on the guilt question must nevertheless

be scrutinized for its potential impact on punishment. Counsel must assess the risk t hat

if the respondent takes the stand and denies guilt, the judge may view this testimony as

perjurious and may impose a harsher sentence on that account.

Another factor to consider is the rule of practice in some localities that gives the

prosecutor an opportu nity for rebuttal closing argument if, but only if, t he defense pres-

ents evidence. See § 36.10 infra.

Beyond this, the only broad principle that is of much use is that generally no defen-

sive evidence is better than unconvincing defensive evidence—from the point of view

both of verdict and of sentence.

§ 33.02 Order of Defense Witnesses

If the respondent testifies and other defense testimony is also presented, it is usually

wise to have the respondent testif y last. In this way the respondent has the opportunity

to observe the whole proceeding, to reconcile any inconsistencies in the testimony, to

avoid the pitfalls of other witnes ses, and to fill in any gaps in t he defense case. See § 10.10

supra.

The principle is not inflexible, of course, and particular reasons may be found to

deviate from it. Because the Supreme Court has held that a prosecutor can, in closing

argument, “call t he jury’s attention to the fact t hat . . . [an accused who testifies last] had

the opportunity to hear all other witnesses testify and to tailor his testimony accord-

ingly,” Portuondo v. Agard, 529 U.S. 61, 63 (2000), it may be advisable to avert such an

argument by calling the respondent earlier in the defense case in situations in which

counsel has reason to fear that the fact-finder may be swayed by a claim of tailori ng. But

see § 10.10 supra (describing state caselaw reject ing the rule of Portuondo v. Agard on state

constitutional grounds). Another scenario in which counsel may prefer to diverge from

the general practice of calling the respondent last is when the defense presents expert

testimony and the exp ert’s opinion will be based i n part on facts to be established at trial

by the respondent. In such a case, the respondent should ordinarily precede the expert.

On request, the court will release an expert from the ban of the rule on witnesses. See

§ 27.11 supra.

Other witnesses should test ify in the order most conducive to logical presentation of

the facts. Of course, t heir convenience also must be considered if the trial is protracted

and if one day is better for them than another. But orderly presentation of the defense

has to take priority over witness convenience except in cases of exceptional hardship

or when the quality of the witness’s testimony will be affected by forcing him or her

to testify at the desirable moment in the trial rather than at a time s/he prefers. Inter-

spersing one type of witness with another destroys the continuity of the defense and