Defense Lawyers often advise against their clients testifying in their own defense. It is typically unnecessary and tends to expose the client to great danger.
Even with an innocent defendant, so much can go wrong: pressured-induced nervousness, bad body language, poor demeanor, inability to succinctly respond to questions, etc., can lead a jury to disbelieve the defendant.
That’s why, as a rule of thumb, most defense lawyers will not allow a defendant to testify in his own defense unless it is absolutely necessary. To the contrary, the lawyer will proudly stand on up for his client’s constitutional rights and demand that the State prove its case beyond a reasonable doubt.
B. W. Evans should have followed this rule. He did not and it resulted in a serious criminal conviction.
Evans faced trial for continuous violence against his family. He took the stand in his own defense, and in response to a prosecution question of whether he had a history of beating his wife, he responded with this blanket denial, “I don’t have a history of beating anybody up.” The prosecution jumped on his blanket denial with both feet, asking Evans if he had ever assaulted Nikki Lawing Benoit, Laura Russell, and Walter Wayne Lehmann, to which he replied he had not.
The prosecution called all three individuals as rebuttal witnesses. Benoit testified that Evans had choked and beaten her during a previous marriage. In addition to being physically abused by Evans, Russell testified that she had been sexually assaulted by him on a date. Lehmann testified that Evans hit and threatened him with a baseball bat.
This rebuttal testimony not only repudiated Evans’s blanket denial of ever “beating anybody up,” it also reinforced the credibility of his wife who testified she had been beaten and choked by him. This was no small matter. Evans’s defense was that his wife had fabricated the abuse charges against him.
Following his convictions, Evans argued on appeal that the trial court erred by permitting the testimony of the rebuttal witness on the ground that it constituted inadmissible extraneous offense evidence. The Sixth Court of Appeals, sitting in Texarkana, recently rejected this argument. While pointing out that extraneous offense evidence is generally probative, there is the risk that it forces a defendant “’to defend himself against uncharged crimes as well as the charged offense, and encourages the jury to convict a defendant based on his bad character, rather than proof of the specific crime charged.’”
But this rule of prejudice does not always apply in situations where a defendant makes a blanket statement of good character. Once he does that, the defendant may “open the door” to rebuttal testimony to the contrary. Texas courts have uniformly held that extraneous offense evidence can be used to impeach a defendant’s testimony. But with this caveat: the jury must be instructed that it cannot consider this evidence in weighing a defendant’s guilt but instead must consider it only in the context that a defendant has misrepresented himself.
Although Evans objected to the use of the rebuttal witnesses during the trial process, he agreed with the prosecution that their testimony “could constitute proper rebuttal evidence.” On appeal, however, Evans argued that the prosecution introduced their testimony for the specific purpose of proving that he had assaulted his wife, not that he had misrepresented his violent history.
In upholding Evans’s conviction, the court of appeals turned to a 2005 decision by the Texas Court of Criminal Appeals which considered, and rejected, a claim remarkably similar to Evans’s claim. In that case, which involved the sexual assault of a child, the defendant testified, “I would never do something like that” and “I have never done anything like that sort of thing with a sixteen year old girl, period.” The Court of Criminal Appeals concluded the defendant had “opened the door” to allow the prosecution to present “specific instances rebutting [the] false impression” created by the defendant.
The Sixth Court of Appeals put it this way: “Direct-examination testimony containing a broad disclaimer of misconduct sometimes can open the door for extrinsic evidence to contradict even though the contradictory evidence is otherwise inadmissible under Rules 404 and 608(b) [Texas Rules of Evidence]. This approach has been justified on the grounds that the witness should not be permitted to engage in perjury, mislead the trier of fact, and then shield himself from impeachment by asserting the collateral-fact doctrine.”
And that’s the problem with allowing a defendant to testify in his own defense. First, defense counsel does not know what the defendant will say or how he will say it, even with pre-trial preparation; and, second, defense counsel has no way of really knowing what doors the defendant may open to hidden skeletons in his closet. No one lives a perfect life. Blanket denials of misbehavior can open the door to otherwise inadmissible allegations.