Does She or Doesn't She Want to Testify?

by Anne Bremner

I, for one, think Casey Anthony wants to testify. But should she?

Casey is the decider, not her defense team. Many people believe that the decision for a client to testify is solely the lawyer's prerogative. Yet, legally, the decision rests with the client, taken under the lawyer's advisement. If the lawyer knows the client will lie willfully on the stand, however, the lawyer must in-camera inform the court and may have to withdraw. In a trial where many viewers might expect Casey Anthony to stand and confess, there are others who anticipate her remaining sullen and silent--as she has consistently been so far. The world is riveted by this case, wondering whether she will, or will not, testify, while legal commentators constantly debate the question, "Should she, or shouldn't she?"

The nearly uniform opinion of the legal analysts is that she should not testify. This is because they believe she is a chronic, habitual liar. It is also because this is a case for the defense to raise reasonable doubt; to call a particularly weak defendant just might upset the applecart. Calling Casey to the stand could do far more than that. Recall the epic cross-examination question in the film Witness For the Prosecution? "Were you lying then, or are you lying now, or are you just a contemptible, habitual liar?"

Or consider the Latin phrase, Falset in unum; Falset in omnibus. False in one. False in everything. In some jurisdictions, and in any event in jurors' minds, if a witness testifies falsely, all the testimony can be disregarded. And if this defendant testifies falsely--which she will be judged to have already done considering evidence of her contemptible history of lying--a death-penalty verdict could become a reality, where, at this time, it is only a distant possibility in her mind.

Many have correctly discussed the fact that the defense bears no burden of proof. True, indeed. Also, that there is no need for the defense to provide evidence about the drowning theory in the Casey Anthony case. False. Falset in unum. Once the defense asserts that certain evidence will be adduced in the trial, the court accedes implicitly that there is good-faith basis for the assertion.

Opening statements can be looked at as tables of content, coming attractions and road maps of what the evidence will show. They are not supposed to be flights of fantasy, conjecture or full of hopefulness with regard to the evidence. Many say Casey need not testify. Falset in omnibus. As a legal commentator, I believe Casey Anthony has to testify. There is no evidence of a drowning accident, nor of sexual abuse, nor will there be, unless Casey Anthony, herself, takes the stand. If she doesn't, the prosecution should ask that the defense's opening remarks be stricken. With that, the defense team could be tainted as well by the inference evoked by the web of lies, leaving it without its primary defenses of accident and abuse.

Does she or doesn't she want to testify? Should she or shouldn't she testify? Will she, or won't she testify? I believe that only Casey knows. But, as we all know, she has been wrong before.

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