“Does each of you understand that a defendant is not required to prove his innocence or to furnish any evidence whatsoever, and that this right is guaranteed by the Constitution?” Twelve heads bobbed yes. “And does each of you promise not to hold it against this defendant if he chooses to exercise his constitutional right not to testily?” The double negative notwithstanding, on cue, all the sheep baaed. Sure, I thought. They’ve all heard of the Fifth Amendment, some technicality used by wily lawyers to keep racketeers out of jail. Jurors want to follow the law, they really do. And they’ll answer all the questions correctly in voir dire. But behind the closed door, whether it’s said openly or not, the thought is there. Dadgummit, if I was innocent, I’d just get right up there and say so. What’s that fellow hiding? Every lawyer knows this, but there are simply times you cannot subject a client to cross-examination. It is often the most important decision a lawyer will make in a criminal case.
