Should Defendants Testify in Self-Defense Cases? There’s No Easy Answer.

Defendants claiming self-defense in other high-profile cases have taken differing approaches, with a mix of results.,

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To testify or not? There are no simple answers for defendants in self-defense cases.

Mitch Smith

Nov. 10, 2021, 10:37 a.m. ET

Nov. 10, 2021, 10:37 a.m. ET

Kyle Rittenhouse with his legal team in court in Kenosha, Wis., on Friday.
Kyle Rittenhouse with his legal team in court in Kenosha, Wis., on Friday.Credit…Pool photo by Sean Krajacic

By taking the witness stand, Kyle Rittenhouse could look jurors in the eyes and try to convince them that he was scared for his life before he shot three men last summer in Kenosha, Wis. But doing so would also open himself up to a grilling by prosecutors, who are likely to accuse him of stirring up trouble and opening fire without reasonable fear that he would be killed or badly hurt.

Deciding whether to testify is one of the most important decisions defendants make, perhaps even more so in cases in which the defendant is making a self-defense argument like Mr. Rittenhouse’s, where the issue is not whether an act took place but whether there was a lawful reason for it. Defendants are not required to testify, and jurors are told not to hold it against them if they do not.

“Putting the defendant on the stand is always rolling the dice,” said Christopher Slobogin, the director of the Criminal Justice Program at Vanderbilt Law. “You never know for sure what’s going to influence the jury.”

Juliet Sorensen, a former federal prosecutor who now teaches law at Northwestern, said that a decision by Mr. Rittenhouse to testify could open new lines of questioning for prosecutors, including why he brought a weapon downtown and his associations with different groups.

“By the defendant climbing up there on the witness stand, he exposes his story and all of its vulnerabilities to be exploited — and possibly made hay of — on cross-examination,” Ms. Sorensen said.

Defendants claiming self-defense in other high-profile cases have taken differing approaches, with a mix of results.

George Zimmerman, who killed Trayvon Martin, an unarmed teenager, in Florida, did not testify at his 2013 trial and was acquitted. Jason Van Dyke, a former Chicago police officer, told jurors that he feared for his life when he shot Laquan McDonald while on duty in 2014; he was convicted of murder. And in Tulsa, Okla., Betty Jo Shelby, a police officer who fatally shot Terence Crutcher, an unarmed man, was acquitted after telling jurors in 2017 that she fired out of fear Mr. Crutcher might have a gun.

In Kenosha, Mr. Slobogin said Mr. Rittenhouse’s decision to testify may have come down to an assessment of whether he was likelier to connect with jurors or hurt his own case.

“If the person gets on the stand and is humble and is articulate and can express himself in a way that comes across as genuine, that’s a plus,” Mr. Slobogin said. “But a lot of time defendants will get on a stand and be defensive.”

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