Presenting the Case for the Defense

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity 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
Pages715-744
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 tria l; this is necessar y for the
adequate preparation of potential defense witnesses; t he 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 test imony is inevitable, counsel should design any openi ng
statement and any other proceedings t hat 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 overr ules the motion for
acquittal following t he 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-
ecutions 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
opportunit y to cross-examine the defense witnesses; t hat the prosecutor can lead them
and hence push them around somewhat; and that—particularly in jurisdictions where
“wide-open” cross-exam ination 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 punish ment. Counsel must assess the risk t hat
if the respondent takes the sta nd 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 u nconvincing defensive evidence—f rom the point of view
both of verdict and of sentence.
§ 33.02 Order of Defense Witnesses
If the respondent testifies a nd other defense testimony is also presented, it is usual ly
wise to have the respondent testif y last. In this way the respondent has the opportu nity
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 g rounds). Another scenario in which counsel may prefer to diverge from
the general practice of calling the respondent last is when the defense presents ex pert
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, t he respondent should ordinarily precede the expert.
On request, the court w ill release an expert f rom 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 tr ial 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 ha rdship
or when the quality of the w itness’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 continuit y of the defense and

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