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Blagojevich and Remaining Silent in a Jury Trial

It is easy for criminal defense attorneys to tell clients that it is better not to testify during a jury trial. Convincing them to take your advice is another story. Just look at Blagojevich.

It is human nature to want to explain your way out of trouble. As described before, talking your way out of one crime can result in prosecution and conviction for another crime. Misdemeanors can turn into felonies. I’ve seen people charged with perjury, a serious felony, for trying to lie their way out of traffic tickets while under oath.


Blagojevich apparently lied to the FBI at some point during the investigation of his alleged illicit activity. It is likely that an experienced criminal defense attorney might have counseled him not to talk to the FBI. However, like movie stars, politicians have their public image to protect. They make decisions about legal matters in light of their concerns about negative publicity or public reaction. So, they cooperate with the authorities. They talk to the prosecutors and police. And, in some cases, they wind up talking their way into a conviction for lying to the authorities.

This appears to be the case with Blagojevich.

But Blagojevich’s criminal defense attorney understood the presumption of innocence. He knew that the government has the burden to prove guilt beyond a reasonable doubt to a unanimous jury. Experienced criminal defense attorneys know that, by minimizing the case they put on, they reduce the chance that the jury might convict simply because they don’t like the defendant, or because they focus on some small inconsistency in the defendant’s testimony to decide guilt or innocence. They protect their clients from nasty prosecutors by not giving the prosecutor a shot at their clients on ‘the stand.’

In Blago’s case, it appears that strict adherence to fundamentals – forcing the government to prove their case beyond a reasonable doubt to a unanimous jury – kept the focus where it should be: on the evidence offered by the prosecution. Not on whether or not the jury liked what Blago had to say. Or his hair (although that is almost impossible to ignore.)

If only he had invoked his right to remain silent earlier. I might not be writing this post. I might be writing about how remaining silent from the get go saved his life and liberty.