A big question is on the minds of jurors, prosecutors, and maybe even Elizabeth Holmes and her defense team, as government lawyers come close to wrapping up their fraud case: Will the fallen Silicon Valley entrepreneur take the stand to defend herself?
There’s no easy formula to arrive at a decision, criminal trial attorneys tell Yahoo Finance, though some critical considerations are bound to weigh in.
“The biggest risk that you can take at trial as a defense lawyer is to call your client to the stand,” trial attorney Andrew George told Yahoo Finance. “The safe thing to do as the lawyer is not to, but that can also be a very safe way to lose.”
Watch: Yahoo Finance's documentary Valley of Hype: The culture that build Elizabeth Holmes
Holmes is charged with fraud in connection with her failed blood diagnostics company, Theranos, which raised more than $700 million from investors and was valued at $9 billion before it imploded under regulatory and legal investigations.
Her lawyers made the unusual move of disclosing in closed pretrial hearings that she's likely to take the stand to testify about an allegedly abusive relationship with her co-defendant, former Theranos COO Ramesh “Sunny” Balwani, who will be tried separately. Still, her defense lawyers may base their advice to Holmes on whether to testify on evidence presented by prosecutors, who are expected to wrap up their case in coming days.
“I can’t imagine going into a trial like this being confident, either way, whether the defendant will testify,” attorney Gregory M. Gilchrist told Yahoo Finance at the start of Holmes’ trial. (Gilchrist previously handled litigation for the law firm Williams & Connolly, which is representing Holmes.). “They’re going to see what the government does and then make their decision.”
If convicted, Holmes and Balwani each face 20 years in prison. Balwani has denied Holmes' claims of abuse, and they have both pleaded not guilty to the charges.
Jurors want to hear from Holmes
In Holmes' case, and every case, George said, lawyers need to carefully calculate the significant risk against the reality that jurors "undoubtably" want to hear the defendant testify. Jurors will put themselves in the defendant’s shoes, he explained, and consider that if they were innocent, they’d shout it from the rooftops, and definitely inside the courtroom.
Trial attorney Brian Klein agrees that jurors do want to hear from the defendant, but can look past a defendant’s decision to stay mute.
“That's what voir dire is for," Klein said, referring to the jury selection process. "You need to question the jury on that very subject to make sure that they could keep an open mind, even if Holmes doesn't testify."