In any sex crimes trial, the testimony of an alleged victim is typically crucial. Yet Owen Labrie, the 19-year-old defendant accused of raping a fellow student at an elite New Hampshire prep school, may provide the testimony that makes or breaks his case when he takes the stand this week.
Labrie — who has pleaded not guilty to all of the charges against him — is expected to testify in order to tell his side of the story. In fact, he may be the only witness his defense team calls, his lawyer said Monday.
The high-stakes decision reflects a calculated risk – defendants have no obligation to testify, since criminal law puts the entire burden of proof on the prosecution.
“It’s unusual that I’m putting my witness on the stand, but it’s always a decision that I leave up to the client,” lawyer J.W. Carney told reporters outside the courtroom.
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Leonard Harden, a veteran criminal defense lawyer in New Hampshire, said it is rare to call a defendant in felony trials. “I frequently do not call any witnesses,” he told msnbc, “most defense lawyers do not call any witnesses.”
Roughly half of felony defendants choose not to testify, though those with no criminal record are more likely to take the stand, according to a 2009 study of trials in large American cities.
Some legal experts are surprised Labrie would testify, given the evidence presented so far.
“When you have a situation like this, where there’s a lot of ambiguous facts, and the burden rests solely with the prosecution, I think there’s reasonable doubt that’s ample enough for the defense to rest on the presumption of innocence,” said Michael Connolly, a former federal prosecutor in New Hampshire.
The trial has included testimony that the accuser initially referred to the encounter with Labrie as consensual, potentially undercutting the prosecution’s case for felony rape charges.
As a legal strategy, testimony by the defendant can risk shifting the emphasis from the prosecution’s case – and any of its holes – to the defendant’s credibility.
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“When you introduce evidence or witnesses, you’re not shifting the burden, but you’re changing the formula for the jury,” said Harden, who has argued criminal cases for over 20 years. When defendants testify, he said, “juries tend to assess the case as two questions, “Did the government prove its case beyond a reasonable doubt? And, did that guy come across genuinely?”
Jonathan Cohen, a criminal defense attorney who has tried hundreds of cases in New Hampshire, believes a defendant’s testimony not only shifts the focus away from the government, but also away from the accuser.








