To Testify or Not To Testify, That Is The Question
Will Ghislaine Maxwell testify at her trial?
Sometime today, Ghislaine Maxwell will either testify in her own defense OR publicly declare under questioning by Judge Alison Nathan that she has made an informed decision not to testify. I will try to unpack the reasons why I thought Maxwell would (1) testify (which it now appears she won’t) and (2) harm herself by testifying, and (3) the process and ramifications of a decision not to testify.
After the prosecution rested, I thought that Ghislaine Maxwell would testify because she needed to do something major to change the case after the United States presented a strong, simple and coherent account of her guilt from the mouths of four victims. As things stand, if Maxwell is convicted, the Sentencing Guidelines would likely yield a sentence of approximately 15 - 18 years. (Pay no attention to the theoretical maximum of 80 years you read in the press. That is simply stacking the maximum sentence for each count to run consecutively, which is not how federal sentencing works. Ken White (aka Popehat) explains it all here.) If Maxwell testified and subsequently was convicted, she would likely face 22 - 24 years imprisonment, with the increase because of trial perjury. Since Maxwell will turn 60 on Christmas, I believed that she might see the two sentences as equal “life imprisonment” sentences and roll the dice.
I thought that Ghislaine Maxwell would make a horrible witness because I read her publicly available civil deposition transcript. She was arrogant, combative, evasive and told a tale so hard to believe that she was indicted on two counts of perjury (to be tried after this case). She claimed not to recall any underage women being in the presence of Jeffrey Epstein, other than possibly the children of her friends when those children accompanied her friends to the Florida home to visit Maxwell. The testimony from the pilot and the butler in this trial drove a stake through that story. In my experience, if a defendant testifies and the jury decides that the defendant lied, the jury will convict the defendant. If Maxwell changed her testimony at this trial to admit that she saw underage girls but had an innocuous explanation, the AUSAs would have roasted her with her prior inconsistent statements, which could be introduced into evidence. It appears that Maxwell’s attorneys may have convinced her that testifying would not help her cause.
So, how will it work if Maxwell elects not to testify? Judge Nathan will send the jurors out of court and hold a public hearing during which she will ask pointed questions about Maxwell’s decision not to testify. She will ask Maxwell:
Are you aware that you have a right to testify?
Have you consulted with your attorneys about the decision whether or not to testify?
Are you satisfied with the advice that you have received?
Has anyone made any threats or promises to you to try to dissuade you from testifying?
Are you satisfied with the advice that you have received from your attorneys about whether or not to testify?
Are you aware that if you elect not to testify, you are giving up that right to testify for all time and you cannot come back later and say that you have changed your mind?
Having considered all of this, is it still your wish to give up your right to testify in this case?
Assuming that Maxwell answers “yes” to all of the questions (except #4, where she will answer “no”), Judge Nathan will make a finding on the record that Maxwell has made an informed and voluntary decision not to testify on her own behalf.
If Maxwell declines to testify, that will create one landmine for the prosecutors in their closing arguments: they cannot say anything that would appear to comment on Maxwell’s decision not to testify. Under the Fifth Amendment, a defendant has an absolute right not to testify. The Supreme Court has long held that the Fifth Amendment right requires that the prosecution cannot ask the jury to draw any negative inference from the decision not to testify. Convictions have been reversed when prosecutors make blanket statements that might be read to comment on the decision not to testify, like “You heard the defense make a lot of promises about what they would show in this trial, but you have not heard anything like that.” Courts have held that similar statements could be head by the jury as urging them to convict because they had not “heard” from the defendant. The best practice for prosecutors is to avoid the whole subject.
How will it all play out? We'll see.
Like I said . . .
It is inconceivable that she will testify. For the reasons you laid out it is Impossible to imagine she can help herself by taking the stand.
Also inconceivable that prosecutors will make the rookie mistake of commenting on the defendant’s decision not to testify. If they do so, the defendant deserves the mistrial she will get. The right not to self-incriminate protects us all.