Michael Lewis popularized the term “Moneyball” in the eponymous book, which was later adapted into a movie about how the small market Oakland Athletics used data analysis to compete with bigger market, more profligate teams. Moneyball is as much about human psychology as it is statistics, and it reveals how humans have a tendency both to overweight and underappreciate certain benchmarks for various reasons. In the context of baseball, Moneyball represented a wave of teams suddenly paying greater attention to statistics such as on base percentage and on base plus slugging, while devaluing historically regarded skills such as sacrifice bunting and base stealing. The approach has not been without controversy either, as traditionalists feel it misses part of the human “it” factor that statistics cannot always measure.
The Moneyball mentality has spread to other sports as well, most notably the NBA, where the Golden State Warriors and their data-driven ownership group of venture capitalists recognized a historical inefficiency of not shooting more 3-pointers. While players make 3-point shots at a lower percentage than 2-pointers, it is not at the rate of 50 percent lower, which is how much more threes are worth. Some detractors feel that these trends are ruining certain sports, but the impact is hard to deny.
We have applied some of these same concepts to our legal practice in order to try and exploit inefficiencies in how law is practiced, particularly when it comes to the highest stakes law: criminal defense.
Unfortunately, in law, statistics are less readily available than for professional sports. However, one statistic, in particular, demonstrates just how daunting a criminal defendant’s prospects of success can be. In 2010, only .3 percent of federal criminal defendants were acquitted. As in sports, many lawyers are anchored by preconceived biases that have gained widespread acceptance in the marketplace but may not necessarily drive the best outcomes. Most notably in criminal defense, there is an overwhelming tendency for criminal defense lawyers not to have their clients testify.
This strategy has logical precedence, since criminal defendants in the U.S. legal system are entitled to a presumption of innocence—although that is hardly true in the court of public opinion, especially these days. Everybody is familiar with the phrase “innocent until proven guilty.” That presumption, and the right of a criminal defendant not to testify and to remain silent, of course, is a fundamental right set forth in the Fifth Amendment of the Constitution and applied to the states through the Fourteenth Amendment.
The right not to testify is one often relied upon by criminal defendants. In many of those cases, defense lawyers rely upon the argument that the prosecution has failed to meet its burden of proof. This strategy can feel almost farcical at times, as if defense counsel is saying the prosecution’s case is so pathetically weak that the defense will not even waste the modicum of effort to have the defendant testify and waste the jury’s time. And it often fails miserably and results in a guilty verdict.
The reason is simple. Juries are comprised of human beings. Regardless of what judges or lawyers tell them, and regardless of what the law is technically, jurors possess biases and use heuristics to make decisions and render judgments. In their minds, they believe that innocent people act innocently, which means standing up and saying so.
There are a variety of other reasons why so few defendants testify in their own defense, which also are not completely senseless. For instance, many lawyers worry whether their clients will be effective witnesses. Testifying is not easy, especially when your freedom is on the line, and it is hard to project charisma in those situations. On the other hand, when your life in on the line, one does not really need to be charismatic or perfect. It is okay to come across as nervous. What is most important is being relatable and believable. In some ways, the higher the stakes, the higher the latitude for imperfection.
Another frequent consideration is the defense team’s fear that, upon cross-examination, even the best witnesses can crumble and get tripped up in inconsistencies. Again, however, the prosecution is going to make its case either way. Every situation is different, but we believe the countervailing weight of having a defendant present a story in his or her own words often holds significant weight against the risk of an imperfect testimony on cross-examination.
Many lawyers will also counsel their clients against testifying in their own defense because if they proclaim their innocence and are found guilty, then the judge can deem that the defendant also lied in their testimony and consider that an aggravating factor. But this consideration just shows the extent to which many defense teams are inefficiently conservative and restrained. If the goal is to get the client acquitted, then one cannot hedge to the point of not putting forth a compelling defense and simply attempting to mitigate the damage. This is the equivalent of playing prevent defense in the fourth quarter of a football game, except instead of being ahead by two touchdowns, which is when most defenses drop-back to a prevent, you are down two.
Yes, if the defendant is clearly guilty—as many are—and the only possible defense that the lawyer can put forth is one comprised of lies—a no-no under any circumstance—then poking holes in the prosecution’s case and relying upon the burden of proof may be the best defense. But if a defendant believes in his or her innocence, then defense lawyers should mount a real defense that often involves the defendant testifying, not a hedge designed to mitigate the number of years in prison. Juries have a very simple way of interpreting such behavior: signs of guilt!
Finally, there is probably a tendency for defense lawyers simply not to veer too far out of the realm of standard defense attorney strategies, lest they open themselves to criticism from colleagues and commentators. This is the worst reason of all. Criminal defendants should hire lawyers to fight for them within the bounds of ethical conduct. Going the safe route is always, well, safer. Winning big, on the other hand, often requires taking real risks.
In addition to having criminal defendants testify at trial though, there is another inefficiency that may even be more grossly underappreciated in the marketplace. While defendants testifying in their own defense is rare at trial, it is probably even rarer that they testify in a grand jury proceeding—when it is even feasible. In federal grand juries, for instance, defendants are not entitled to testify and may not even be aware of the charges prior to indictment.
In New York, criminal defendants who are charged with felonies must be indicted by a grand jury before the case can move to trial and they must be provided notice if they have already been arraigned pursuant to Criminal Procedure Law 190.50. The standard for a grand jury indictment is probable cause, whereas at trial, conviction requires a higher standard of beyond a reasonable doubt. If a grand jury chooses to indict, it returns what is known as a true bill and, if no indictment, a “no true bill,” in which case those charges are dropped.
Again, very few criminal defendants testify at a grand jury because the stakes are perceived as even more stacked against the defendant. The defendant’s lawyer cannot intervene or ask questions. The defendant is seen as a sitting duck in many ways because the prosecution can ask virtually anything without any judge present to moderate and without defense counsel being able to raise objections. Additionally, the grand jurors themselves can ask the defendant questions. Finally, anything that defendants say during the grand jury can be used against them at trial, so there is a real fear of creating a record that could be detrimental later.
While there is potential downside to a defendant testifying during a grand jury proceeding, on the other hand, the upside is complete victory before ever going to trial. And once again, grand jurors are human. In fact, unlike normal juries, they are often empaneled to hear scores of cases for weeks at a time. In almost every single one of those cases, the defendant will not testify. As a result, the process, more-or-less, becomes a rubber-stamping exercise. The prosecution makes the argument. Nobody is there to refute it. Indict. Indict. Indict. Indict. And then somebody shows up and says, “Hold on, I’m innocent!”
This can be a very powerful and compelling move for a defendant. In addition, defendants have the opportunity to make their own statements to a grand jury. They can actually write out what they want to say to ensure that they cover every point they want to make. They can also encourage the grand jurors to demand other pieces of evidence and call other witnesses, which can further connect the defendant with the grand jurors as if they are partners working together to uncover the truth.
We recently handled a high-profile white-collar criminal defense matter in which we were confident our client was innocent. We made a decision early on that we would have our client testify in the grand jury, and we let that be known to the District Attorney. Ultimately, the DA never did make that presentation, cancelling a scheduled proceeding in order to conduct a proffer session with our client and start a negotiation that ultimately led to a completely non-criminal disposition. Without our insistence on having the client testify—which also conveys a level of confidence to prosecutors that can be unnerving to them—it is very possible the prosecution would have proceeded.
At any trial, but particularly in a criminal trial, jurors hear conflicting narratives and see evidence that tells a different story. They ultimately are looking for the signs, more than anything else, that indicate whose story feels more like the truth. When defendants sit meekly and silently in the corner and let someone brand them a criminal without punching back in their own defense, jurors have a tendency to believe the one full story they think they have been told. If only more defense teams had the guts and boldness to tell their story in their words, there would probably be way more acquittals and no true bills. That’s an inefficiency that we try to exploit. We call it Moneyball for lawyers.
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