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Danny Masterson hung his jury without saying a word

If the defendant testifies and the jury disbelieves even one thing he says, it’s probably over. 
Danny Masterson
Actor Danny Masterson leaves Los Angeles superior Court with his wife, Bijou Phillips, after a judge declared a mistrial in his rape case in Los Angeles on Wednesday.Brian Melley / AP

The judge presiding over the rape case against “That ’70s Show” star Danny Masterson declared a mistrial Wednesday after the jury reported that it was hopelessly deadlocked.

A retrial has already been scheduled for March 27, so Masterson, 46, still faces up to 45 years in prison if he is convicted of raping three women at his Hollywood Hills home from 2001 to 2003. 

There’s an old saying that there’s no sound louder in a criminal courtroom than the defendant’s silence. It’s true.

The actor has denied all the allegations. But he never told the jury that directly, as his lawyers never called him to the stand — or any other witnesses. Why not? Why didn’t Masterson take the stand to deny these allegations against him? Why didn’t the defense call any witnesses? And is it wise for his legal team to deploy the same strategy at his next trial?

Probably the most basic reason that Masterson’s lawyers didn’t call on him was that they didn’t have to. A criminal defendant is presumed to be innocent. That means the prosecution must prove a defendant guilty beyond a reasonable doubt. This is an instruction that judges give juries in criminal cases in California state courts, where Masterson’s case was heard. 

California juries are also instructed in some version of the following: A defendant has “an absolute constitutional right not to testify.” The jury is not permitted to consider, for any reason at all, the fact that a defendant does not testify. California juries are told to not even discuss it during deliberations. It is the thing-that-cannot-be-mentioned.

This means that the defendant has no obligation to testify, present evidence or call any witnesses. He can just point to weaknesses in the prosecutor’s case. In other words, in rape cases, the evidentiary standard is rarely “he said, she said.” It’s more like, “she said, he said nothing — and you can’t hold that against him.”

But that doesn’t mean a lack of defense witnesses has no impact on the jury. A person accuses the defendant and describes what happened. When the defendant says nothing, the only story in the record is the accuser’s. Are jurors supposed to presume that the defendant’s nonstory — whatever it is — is more believable than the accuser’s story? That’s not plausible.

There’s an old saying that there’s no sound louder in a criminal courtroom than the defendant’s silence. It’s true. I don’t care how many instructions the judge gives to the jury about the presumption of innocence and the defendant’s right not to testify. A jury wants to hear from a defendant.

The problem is: It’s often just too risky. And that’s why the decision not to put Masterson or other defense witnesses on the stand made sense.

Criminal defendants testify in a minefield that accusers do not. For starters, a criminal defendant might inadvertently “open the door” to harmful evidence that otherwise would be inadmissible.

Imagine Masterson had taken the stand and, under cross-examination, lost his composure just a little. Not that he completely imploded, like Col. Nathan Jessup did on the witness stand in the classic trial film “A Few Good Men.” Instead, suppose he mentioned something seemingly innocuous like: “I’m a good guy. I’m not a violent guy.” Sounds harmless enough, but under the rules of evidence, he might as well have stepped on a claymore mine. 

Under these rules, the prosecution is not allowed to slime a defendant with evidence of unrelated bad things he’s done in the past. But if the defendant himself takes the stand and introduces the issue of his own good character, then it’s game on. The prosecution can now introduce evidence of bad character. 

Sound confusing? It is. It’s confusing to lawyers. Defendants testifying in their own criminal trial, with no legal training and spiking adrenaline levels, cannot possibly expect to navigate these rules without endangering themselves — even when they are famous performers used to memorizing lines. (This was the scenario that played out when actor Amber Heard mentioned ex-husband Johnny Depp’s former girlfriend Kate Moss in his defamation case against her, which his attorneys then pounced on.) 

And the door-opening rule wouldn’t have applied just to Masterson but any witness the defense calls. That’s why it’s risky for a defendant to present evidence at all. Defendants frequently rest without calling any witnesses. 

Defendants testifying in their own criminal trial, with no legal training and spiking adrenaline levels, cannot possibly expect to navigate these rules without endangering themselves.

If the defendant is trying to prove an alternate theory of the alleged crime, like “some other dude did it” (often called SODDI among criminal defense attorneys), then the defendant may have to call witnesses. That didn’t appear to be Masterson’s strategy, however. His strategy seemed to be simpler, and far more common: “They are lying.” If this is the defense’s battle plan, then it was probably safer to use their closing argument to point to inconsistencies in the state’s case, like an accuser’s lack of credibility or gaps in memory. 

And even if the accuser’s testimony is mostly believable, that doesn’t mean it will be sufficient to convict someone. If the evidence suggests the defendant was probably guilty, well, “probably guilty” is not “guilty.” In fact, probable guilt is “not guilty,” since by definition it’s not guilt beyond a reasonable doubt. An assessment of probable guilt at the close of the prosecution’s case is “winning” for the defense. 

If the defense then starts calling witnesses and things go poorly, a defendant can lose a case he’d been winning. And if the defendant testifies and the jury disbelieves even one thing he says, it’s probably over. 

Ultimately, defense attorneys like me are mostly risk averse. No one wants to be a cautionary tale — the defense team that was winning when the prosecution ended its case but lost because of the witnesses they then called.

Because the first trial has now ended in a hung jury, the defense may rethink their original strategy. That the jury deadlocked at all means that it was at least a close call. But it also means there were some votes for a guilty verdict. That means the safer course could be to again decline to put on a defense. A hung jury is better than a conviction.