On Donald Trump's Decision Not To Testify At His Criminal Trial

A Wise Decision, But He Will Be Left Without Anyone To Blame

According to Former President Trump’s attorney, Emil Bove, the defense will rest tomorrow after concluding its redirect examination of Robert Costello (former attorney to Michael Cohen), without calling any additional witnesses. IF (huge IF) the defense adheres to that plan, it would mean that Donald Trump would not take the stand in his own defense, despite his repeated statements to the press that he intends to do so. This is a big deal.

• BEFORE TRUMP CAN DECIDE NOT TO TESTIFY, HE WILL HAVE TO ANSWER QUESTIONS IN OPEN COURT

If Donald Trump decides not to testify in his own defense, he will be asked very specific questions by Justice Merchan, in open court but without the jury present. Specifically, Justice Merchan will FPOTUS:

1. If he understands that he has the right to testify;

2. That he is intentionally giving up his right to testify;

3. Whether anyone has made any threats or promises to him in order to get him to give up his right to testify;

4. That he can decide whether or not to testify, regardless of any advice that he has received from his attorneys; and

5. That, if he gives up his right to testify, he can never later complain about what would have happened if he had testified.

This is the standard operating procedure in every felony criminal case in New York state court.

• THE PROCESS IS DESIGNED TO PREVENT A DEFENDANT FROM BLAMING ANYONE ELSE FOR THE DECISION NOT TO TESTIFY

The reason for the procedure is to inoculate the proceedings against a later claim by a convicted defendant that he only gave up his right to testify because someone promised him something (such as that he would be acquitted), threatened him or otherwise interfered with the decision whether or not to testify.

In the case of Former President Trump, we have seen his willingness to blame his attorneys for his decision not to testify at trial. Specifically, ever since the first verdict in favor of E. Jean Carroll (which found that Mr. Trump sexually assaulted her in the 90s and then defamed her in 2021), Mr. Trump has blamed the verdict on his trial counsel, Joe Tacopina, convincing the former president not to testify at that trial. In Mr. Trump’s telling, the jury never would have ruled against him if he had taken the stand and denied that he sexually assaulted Ms. Carroll.

• IN MY VIEW, TRUMP WOULD BE VERY FOOLISH TO TESTIFY

If he decides not to testify, I think that Mr. Trump would be making a wise decision. In my training and experience, when a defendant chooses to testify, it becomes a “one witness case.” If the jury believes the defendant, it will acquit. If the jury does not believe the defendant, it will convict. Any work that defense counsel has done to impeach the testimony of prior witnesses becomes irrelevant.

Here, if Mr. Trump testifies, the Court has ruled that he will have opened the door to the prosecution introducing a lot of evidence that previously has not been allowed in this trial, including:

1. That Trump has been found liable for fraud in the case brought by NY Attorney General Letitia James;

2. That Trump has been found liable for defamation for falsely saying that E. Jean Carroll lied about being sexually assaulted by him; and

3. That Trump has had a number of other judgments and rulings against him.

What will happen tomorrow? We will see.

The only thing I know for certain about the future is that it has not happened yet.