| LACI & CONNER May the Truth be told |
| WILL SCOTT TESTIFY? March 4, 2004 |
| Recordings from wiretapped conversations could compel Scott Peterson to testify in his murder, legal observers said Wednesday. "As a tactical matter, it will put pressure on the defense to put the client on the stand," said Professor George Bisharat, a specialist in criminal procedure at Hastings College of the Law in San Francisco. "If he says something that sounds inculpatory in those conversations, somebody is going to have to explain it." A judge has sealed the recordings, but court records show they include conversations Peterson had with journalists, his mother and his former girlfriend, Amber Frey. Prosecutors contend in court documents that Peterson's public statements about his relationship with Frey "support motive for the murder." His presumably private statements with her and others might be potent evidence. "It could be dynamite," said Roger C. Park, an evidence specialist at Hastings. "When defendants are talking freely, they can say things that are incriminating or can be shown to be lies. Well, why would they be lying?" A defendant's tone, attitude and demeanor also can be damaging in the eyes of jurors. "Supposedly, he doesn't know that the wife is dead at the beginning," Park said. "Is he saying something that sounds like he knows she's dead? Does he sound like somebody who's sad he lost his wife?" None of those potential statements is proof of guilt, however, Park and others said. And through skilled witness questioning, defense attorney Mark Geragos could come up with alternative explanations for many potentially damaging comments. None of those potential statements is proof of guilt, however. And through skilled witness questioning, defense attorney Mark Geragos could come up with alternative explanations for many potentially damaging comments. But ultimately, some statements might be difficult to explain without Peterson taking the stand. "Typically, wiretap evidence can be very powerful because you're hearing the defendant's own words," Levenson said. "It's very hard for him to take it back unless he takes the stand and subjects himself to cross-examination." If such a situation arises, Peterson has a right to decide whether to testify. Geragos undoubtedly will advise him on what to do, analysts said, and defense attorneys rarely suggest their clients take the stand. If Peterson testifies, prosecutors can grill him on a range of subjects during their cross-examination, potentially doing more damage to the defense. "There's a good strong majority of defense attorneys who think only bad things come from a client's testimony," Bisharat said. A minority of defense attorneys contend that jurors always want to hear from the accused, even though they are instructed by the judge not to consider the defendant's silence n the courtroom as an indication of guilt, Bisharat said. In that line of thinking, "the common tendency is to believe that there are two sides to every story and that this person ought to get up and tell their side," he said. "If they don't, then that is an indication they've got something to hide." Typically, the decision is made on a case-by-case basis, weighing factors including the strength of the prosecution's case and whether a defendant will play well with the jury, legal observers said. The defense also may realize that prosecutors have marginal evidence they are holding, gambling that it would impact more powerfully if rolled out when cross-examining the defendant. "It's a chess game," Levenson said. "If the prosecution has a weak case, don't make it stronger by putting your client on the stand. If the prosecution has a strong case, what have you got to lose?" WIRETAPS TRIAL NEWS HOME INDEX LACI SCOTT EVIDENCE-NEWS DEFENSE-PROSECUTION PHOTOS |
 |