John Edwards: Why He Does Not Need to Testify

NBC's Today Show has a new video on whether John Edwards should testify at trial. It includes interviews with two legal analysts who opine that John Edwards should testify. One even said "It's up to John Edwards to look the jury in the eye and convince them he did not violate the campaign finance laws."

That's absolutely not the law. That the analyst obviously knows this is not the law and may just be making the point that in his view, as a practical matter, jurors will expect Edwards to convince them of his innocence, does not excuse his perpetuating such a false notion. It's really an irresponsible comment.

John Edwards does not have to convince this jury of a single thing. He has zero burden of proof. The burden of proof is completely on the Government. It is the Government that bears the burden of proving each and every element of each crime charged beyond a reasonable doubt.

I can think of no good reason for John Edwards to take the stand and I predict he won't. [More...]

Three bedrock principles in every criminal case are the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt.

The jury is not being asked to determine if Edwards is innocent. He is presumed innocent. It is only tasked with determining whether the prosecution has convinced them beyond a reasonable doubt that Edwards is guilty.

Trials aren't a "fill in the blanks" game where jurors are supposed to supply the missing pieces by guessing what someone intended. Their job is not to take alternate theories and choose which makes the most sense.

A reasonable doubt can arise from a number of things. It can arise from the evidence presented or the lack of evidence presented. It can arise from the government’s failure to present evidence the jury would expect to have been presented. It can arise from the absence of evidence corroborating the testimony of a damaging witness. And these are just a few examples. If jurors are left with uncertainty, if they feel there are unanswered questions that keep them from feeling confident about what happened, they must find Edwards not guilty. It is not Mr. Edwards’ responsibility to provide answers to any questions they have about the what happened. It was the Government's responsibility.

If jurors wanted to hear from a witness who was discussed at trial but did not testify, like Rielle Hunter, Bunny Mellon or Lisa Blue Baron, it can’t look to Edwards, it must look to the Government.

I don't see what John Edwards has to gain by testifying. This jury isn't being asked to find beyond a reasonable doubt that John Edwards lied to the media, the public, his wife, his staff or Andrew Young. Or that he had flights of fancy and wanted to be vice-president or attorney general. He's not charged with lying about having an affair or with adultery or being a bad husband, fathering a child out of wedlock or having delusions about his political future.

He's charged with accepting campaign contributions above the lawful limit while he was running for President, and with not disclosing the contributions to his campaign for inclusion on its finance report. The law is very technical on when expenditures by third parties on behalf of a candidate are treated as campaign contributions. He's also charged with conspiracy. The conspiracy charge alleges he entered an unlawful agreement with others to accept illegal campaign contributions above the lawful limit and not disclose them to his campaign. It doesn't charge conspiracy to hide his affair, which is not a crime.

The jury has to decide first and foremost if the Government proved, beyond a reasonable doubt, that the moneys Edwards accepted were in fact campaign contributions as defined by statute. Assuming it finds they were, it then has to decide whether Edwards accepted them willfully, meaning he knew they were illegal campaign contributions and intended to violate the law by accepting them.

If the funds provided by Baron and Mellon weren't campaign contributions, Edwards didn't break any law in accepting them or in failing to disclose them -- and he didn't conspire to to do these things.

If the jury finds they were campaign contributions, that's still not enough to find him guilty. The jury must decide whether the Government presented sufficient evidence to prove beyond a reasonable doubt Edwards knew the funds were campaign contributions under the statute and accepted them intending to violate the law.

The Government presented no evidence that John Edwards knew the monies were campaign contributions under the statute. All of its witnesses that addressed this, including Andrew Young and his wife, testified Edwards assured them the money was not a campaign contribution and its acceptance was lawful. Andrew Young even wrote that in his book. That he later came to believe they might be campaign contributions, long after the alleged crime, is of not import. It's what he knew at the time the Government alleges the offense was committed. That time period, at least as to the four counts charging illegal acceptance of contributions, is while he was running for President.

John Edwards lawyers will speak for him during closing arguments, and give the jury all the reasons to find doubt in the Government's case. They will make sure the jury understands that while Edwards maintains he did not do what he is accused of, they need not believe in his innocence to find him not guilty. There is no reason for Edwards to testify and take on a burden of establishing his innocence.

The judge will instruct the jury that it may not even consider Edwards' decision not to testify when deciding the case. This is because in our legal system, the only burden is with the Government. The presumption of innocence remains with John Edwards throughout the trial, until and unless the jury finds him guilty. Defendants don't have to take the stand just to assert their innocence. They have no duty to explain why someone would make up a lie about them. Edwards' has made the statement he is innocent just by his decision to fight the charges.

Edwards, like every defendant, has the constitutional right to sit back and make the Government prove its case against him. He can call witnesses, he can testify if he chooses, or he can do nothing.

The 4th Circuit, which includes North Carolina federal courts, is one of two federal circuits where the judge does not givee the jury a definition of reasonable doubt. (A judge in the 4th Circuit has discretion to give such an instruction if the jury asks for it.) The rationale, which I strongly disagree with, is that the meaning of reasonable doubt is self-evident, universally known and nearly impossible to define. Be that as it may, the defense still gets to present to the jury in closing all the reasons for doubt that exist in the Government's case. A juror only needs one reason to doubt, and it doesn't have to be the same reason as any other juror.

In this case, one juror's doubt might be based on the credibility a Government witness. The jury will get a lengthy instruction on how to evaluate credibility. It will get an instruction on treating the testimony of cooperating witnesses who get a deal in exchange for their testimony with greater caution than ordinary witnesses. It will be told that if they think a witness lied as to any one matter, they are free to disregard his entire testimony.

Edwards' doesn't need to testify to show a reasonable doubt in the testimony of Andrew Young. His lawyers can do that by telling the jury that reasonable doubt walked right in front of them, took the witness stand, raised his right hand and said "My name is Andrew Young."

Another juror may have a doubt on whether venue has been proven (even by the lesser preponderance standard that applies to venue.) Another may have a doubt as to whether the Government proved the monies from Mellon and Baron were campaign contributions under the statute. Another might be uncertain as to Edwards' knowledge and intent. Since it's the Government's burden to prove both, any uncertainty must be resolved in Edwards' favor.

John Edwards has already raised more than a dozen reasons for reasonable doubt in pre-trial motions. I summarized them here.

I can't see any good reason for John Edwards to take the stand. He has zero burden to convince this jury of anything. It would be a violation of a juror's oath to infer anything from his decision not to testify. All his lawyers need to do (and it's their job, not his) is provide the jury with reasons to doubt.

Even as a civil lawyer, John Edwards knows the pitfalls of having a client testify when there is evidence before the jury that the client lied about anything. He also must know that our prisons are filled with people who thought if they could only tell their side of the story, a judge or jury would see it their way.

Whether Edwards should testify is a matter open to debate. But the arguments should not be framed in terms of a need for him to convince the jury of anything. That's just propagating an idea that is contrary to our laws and our constitution, and the principles they were founded on.

Update: Team Edwards has just filed a 27 page pleading objecting to the Government's proposed instructions. It argues that there is no per se rule in the 4th Circuit preventing a reasonable doubt instruction. I agree with their arguments as to why one should be given, but I don't think the court will agree, based on the case law.

The defense does make a good argument that the Government's version of instructions include reminders that it doesn't have to prove the case beyond all doubt. Why should the Government get to say what reasonable doubt is not, if it's self-evident? The Court shouldn't instruct on what it isn't unless it's also instructing on what it is.

Also, one argument I would have made is that since venue has to only be proven by a preponderance of the evidence, and everything else by beyond a reasonable doubt, the lack of definition doesn't provide the jury with any basis to differentiate. If both standards are applicable somewhere in the case, it seems to me both should be defined.

The new pleading also takes issue with the Government's phrasing as to wilfulness and knowingly, and of course, its instructions on what constitutes a campaign contribution. The Court really should have decided these matters before trial. They were raised, and it seems unfair to make either party proceed in the dark, not knowing what they have to prove or defend. If Edwards is right that expenditures for Hunter and Young are not his personal expenses, a lot of prejudicial testimony on intent, which came in as hearsay, could have been avoided.

Lastly, as an example of how reasonable doubt is not self-evident, consider the Scooter Libby trial which took place in the District of Columbia. Here's the reasonable doubt instruction the jury was given.

Yet, even having been instructed on reasonable doubt, the jury sent the Court this question during deliberations:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

Supreme Court Justice Ginsberg wrote in her concurring opinion in Victor v. Nebraska in 1994:

But we have never held that the concept of reasonable doubt is undefinable, or that trial courts should not, as a matter of course, provide a definition. Nor, contrary to the Court's suggestion, see ante, at 1, have we ever held that the Constitution does not require trial courts to define reasonable doubt.

...Whether or not the Constitution so requires, however, the argument for defining the concept is strong. While judges and lawyers are familiar with the reasonable doubt standard, the words "beyond a reasonable doubt" are not self defining for jurors. Several studies of jury behavior have concluded that "jurors are often confused about the meaning of reasonable doubt," when that term is left undefined.

...Thus, even if definitions of reasonable doubt are necessarily imperfect, the alternative--refusing to define the concept at all--is not obviously preferable.

Still, the rule in the 4th Circuit as stated in U.S. v. Oriakhi

It is well settled in this circuit that a district court should not attempt to define the term “reasonable doubt” in a jury instruction absent a specific request for such a definition from the jury....   We have repeatedly concluded that the words “beyond a reasonable doubt” have the meaning generally understood for them and that further efforts to restate their meaning with different words tend either to alter or to obfuscate that meaning. ...  See also Victor v. Nebraska, 511 U.S. 1, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (“the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.”).

Later, in U.S. v. Najjar, the Court, relying on Oriakhi and other cases said:
We have held that it is improper for a district court to define reasonable doubt for a jury unless the jury itself requests a definition.  

And in 2011, relying on Oriakhi and other cases, a district court in the 4th circuit has said:

Precedent could scarcely be more clear. Defendant] was not entitled to a jury instruction as to reasonable doubt.
Also see U.S. v. Walton.

As I said, I think it's a bad rule. I wonder if the defense can argue to the jury, in the absence of an instruction defining reasonable doubt, that a reasonable doubt is just what it says: any doubt a juror has that he or she can give a reason for.

The defense objected to several other instructions, this post is already way too long so I won't detail them here.

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    In my opinion (5.00 / 2) (#6)
    by NYShooter on Sun May 13, 2012 at 09:21:23 PM EST
    A not-guilty verdict will depend on how successfully Edward's defense attorney is in extricating the really quite simple campaign law he's accused of violating from the buckets of slime the prosecution poured onto this case with the ill-disguised intent of getting a jury nullifying verdict of John Edwards being a low down cad.

    In a way Edwards situation is similar to Bill Clinton's. Both men were dumb enough to get involved in life altering affairs, but way too smart to violate criminal laws. In Clinton's case it really did come down to, "it depends on what the definition of `is', `is.' Many attorneys agreed that Clinton was technically right in light of the confusing perjury laws, but Judge Susan Wright's adverse ruling, I believe, stemmed from a basis of pique, rather than the letter of the law. I just hope Edward's jurors are more respectful of the law as it is written and don't let personal feelings rule the day.

    That's, IMO, anyway.

    For my money (none / 0) (#7)
    by bmaz on Sun May 13, 2012 at 09:49:46 PM EST
    That is about right.  Abbe Lowell is very good though, so I think he can do just that.  A lot may also depend on whether Scott Thomas and/or Robert Lenhard are allowed to testify. If Eagles give the defense the same incredible latitude she gave the prosecution, they come in.  If they do, that is likely the ballgame.

    Lowell is the best.....if (none / 0) (#11)
    by NYShooter on Mon May 14, 2012 at 08:54:48 AM EST
    He's allowed to present a fair defense.

    Eagles, from the impression I've gotten, harbors a dislike towards Edwards, and while Thomas/Lenhard will probably be allowed to testify, I'm pretty sure she'll keep them on a very short leash. I doubt very much that their statement re: Edward's "crime,".... "does not violate civil law, much less criminal," will be allowed in. If it does, it will be a huge plus for Edwards.

    My problem is what this lay jury will have to contend with. First, the overcharging of six felony counts. Then the confusion of exactly what "the preponderance of the evidence" means. And finally, there's 12 jurors. That's a lot of people to convince for a unanimous decision.

    They've got their work cut out for them.


    John Edwards has no obligation to (none / 0) (#1)
    by oculus on Sun May 13, 2012 at 07:39:26 PM EST
    testify.  But I bet he will.  He likes to talk and it's his call.

    Jeralyn, where might I find your discussion of the requested jury instructions re "willfully"?  Thanks.  

    the wilful discussions (5.00 / 2) (#3)
    by Jeralyn on Sun May 13, 2012 at 08:11:22 PM EST
    are are here and here. There may be more as I tend to mention it in every thread, let me know if that's not what you were looking for.

    I agree.... (none / 0) (#2)
    by bmaz on Sun May 13, 2012 at 07:47:36 PM EST
    And I think Edwards may actually be controllable enough by Lowell that he does not take the stand. Rusty Hardin may have a tougher time with Clemens in this regard.

    my father (none / 0) (#4)
    by desmoinesdem on Sun May 13, 2012 at 08:45:00 PM EST
    didn't do a ton of litigation and did almost no criminal law, but I remember him saying (in the context of President Bill Clinton's deposition regarding Monica Lewinsky), "When you have a client who lies, don't put him under oath."

    Good Advice (5.00 / 1) (#5)
    by bmaz on Sun May 13, 2012 at 08:53:42 PM EST
    Although I am not sure Clinton technically lied in his deposition. Disingenuously found a shade on the gray scale, sure. Lied, I dunno about that.

    President Clinton's deposition (none / 0) (#15)
    by KeysDan on Mon May 14, 2012 at 01:32:15 PM EST
    regarding Jones v Clinton, seemed more than on the gray scale. As I recall, they sandbagged the president with questions on Monica Lewinsky, and he responded to a specific question that "I have never had sexual relations with Monica Lewinsky.  I've never had an affair with her."  The later response owing to the previous discussion of extramarital affair and relations.  

    I am still quite puzzled why the issue (none / 0) (#8)
    by oculus on Sun May 13, 2012 at 09:57:31 PM EST
    of venue is a jury question.  Also, motion on behalf of Mr. Edwards only raises venue as to the male contributor and acknowledges one count re him is properly venued.  

    After looking at (none / 0) (#9)
    by lentinel on Mon May 14, 2012 at 07:21:43 AM EST
    the video of the report on MSNBC, all I come away with is the impression that NBC is trying to apply whatever pressure they can on Edwards to testify for the simple reason that they want the resulting ratings bonanza. Lisa Meyers and the rest come across as unprincipled shills imho.

    Isn't it (none / 0) (#10)
    by jbindc on Mon May 14, 2012 at 07:23:03 AM EST
    an interesting quirk in our criminal justice system that:

    The jury is not being asked to determine if Edwards is innocent. He is presumed innocent.

    A defendant is presumed innocent and does not have to prove innocence, yet is found "not guilty", which is not the same thing as being found "innocent"?

    makes perfect sense to me (none / 0) (#12)
    by Jeralyn on Mon May 14, 2012 at 10:26:21 AM EST
    before trial, one is innocent. After trial, one is either not guilty or guilty. The jury doesn't decide innocence because he is innocent until and unless he is found guilty. If the jury does not find him guilty, he never loses the cloak of innocence. Read the long line of cases on why the presumption of innocence must be explained to the jury.

    Oh, I understand it (none / 0) (#13)
    by jbindc on Mon May 14, 2012 at 10:36:45 AM EST
    And wholeheartedly agree with the concept.  But "not guilty" does not mean that the jury thinks (or in reality) the defendant didn't do it.  It just means the state didn't prove it's case.  As opposed to a jury stating that, in fact, the defendant is innocent of the crime.

    Again - I just see it as a quirk of our system (unlike in Scotland, where they have "Guilty", "Not Proven" (where the jury says they aren't sure the defendant did the crime, but the state didn't prove it), and "Not Guilty" (where the jury is sure the defendant is innocent).


    Or put another way (none / 0) (#14)
    by Jeralyn on Mon May 14, 2012 at 12:27:32 PM EST
    a finding of not guilty can even mean the jury believes that the defendant is guilty, but thinks the evidence falls a little short, so it cannot find  him  guilty beyond a reasonable doubt.

    Here's a post explaining the meaning of a not guilty verdict.