Putting a defendant on the stand to testify in their own defense is risky business.
Sometimes it works, and sometimes it doesn’t, legal experts told the Tribune-Review.
It’s anyone’s guess whether Michael Rosfeld will take the stand and describe under oath exactly what happened on June 19, 2018, the day the former East Pittsburgh police officer shot and killed 17-year-old Antwon Rose II as the teen ran from a felony traffic stop.
Rosfeld faces one count of homicide. His trial is scheduled to start Tuesday.
Whether Rosfeld testifies could depend on how he’ll perform in front of the jury, how the prosecution presents its case and how badly he wants to tell the jury his side of the story, experts told the Trib.
The risks are high. Rosfeld could crack under cross examination. He could turn the jury against him depending on his answers and actions on the stand.
“All in all, it’s a scary business,” Butler defense attorney Al Lindsay said.
Chicago attorney Daniel Q. Herbert, 50, is a former cop who has carved out a niche representing police officers in criminal cases. He recently defended Chicago Police officer Jason Van Dyke, who was convicted of second degree murder in 2018, four years after he shot and killed 17-year-old Laquan McDonald.
Van Dyke testified at his trial.
“That’s a decision that I always make the client decide. In this case, we felt very strongly from day one that we would need to put Jason on the witness stand. We needed to explain his version,” Herbert said.
Police can make excellent witnesses on their own behalf, Herbert said. They’re accustomed to being in court. They can be charming and thoughtful and can “win over” a jury, he said.
In cases where they’re facing criminal charges, they also are often adamant about testifying, he said.
“They’re fighting for their life,” Herbert said.
Whether a defendant testifies depends upon the case and the strength of the case against the accused, Lindsay said.
Lindsay represented former Mercer County District Attorney Miles Karson on charges of obstruction, official oppression and hindering prosecution. Karson was found guilty, but the jury spent a day listening to him explain his version of events.
“It depends on the defendant. Are they articulate? Are they believable? Do they have enough personal presence to be accepted by a jury?” Lindsay said. “There are certain cases that require the (accused) to give their explanation of a certain set of facts. You have to put them on or the charges would be unanswered.”
In a case like Rosfeld’s, putting him on the stand could provide the jury with Rosfeld’s perspective, said Mark Calzaretta, a Philadelphia-based civil and criminal jury consultant.
“His perspective would matter in this case. Here, I think the jury’s going to want to hear in his own words what’s going through his mind when this happened,” Calzaretta said. “It all comes down to him, what he was thinking.”
In this case, there isn’t a question about whether Rosfeld pulled the trigger.
The way the prosecution lays out its case will also impact whether or not Rosfeld will take the stand, said Bruce Antkowiak, chairman of the criminology department at Saint Vincent College in Latrobe. The defense presents its case after the prosecution, meaning Rosfeld and his attorney, Patrick Thomassey, can wait until after Chief Trial Deputy District Attorney Daniel Fitzsimmons makes his case.
Antkowiak said most defendants make bad witness because they’re not used to testifying or defending themselves.
“Even if the defendant is a police officer who has experience testifying,” Antkowiak said.
For the defense, the decision of whether or not for the accused to testify is “one of the most difficult tactical decisions a defense team has to make in any case,” he said.
The testimony can outweigh facts and evidence presented in the trial, he said. It could boil the trial down to whether the jury believes Rosfeld or not.
Antkowiak said it is “one of the most difficult tactical decisions a defense team has to make in any case.”