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The jury of Danny Masterson who was hung in court gives the defense team a second chance at this strategy

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

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

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

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

Probably the main reason Masterson’s lawyers didn’t call on him was because they didn’t have to. Is a criminal suspect supposed being innocent. That means the prosecution must prove that a defendant is guilty beyond a reasonable doubt. This is an instruction that judges give to criminal juries in California state courts, where Masterson’s case was heard.

Juries in California are also instructed in some version of the following: A defendant has “an absolute constitution Turn right not testify.” The jury may, for any reason, disregard the fact that a defendant does not testify. California juries are told not to even discuss it during deliberations. It is the thing-that-cannot-be-named.

This means that the accused is not obliged to testify, provide evidence or call witnesses. He can only point out weaknesses in the prosecution’s case. In other words, in rape cases, the standard of proof is rarely “he said, she said.” It’s more like, “she said, he said nothing – and you can’t blame him.”

But that doesn’t mean a lack of defense witnesses doesn’t affect the jury. A person accuses the defendant and describes what happened. If the defendant says nothing, the only recourse in the file is that of the prosecution. Should jurors assume that the defendant’s non-story – whatever it is – is more believable than the prosecution’s story? That is not plausible.

There is an old saying that in a criminal court there is no sound louder than the accused’s silence. It’s true. I don’t care how much instruction the judge gives 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 prosecutors don’t. For one thing, a criminal defendant may inadvertently “open the door” to damaging evidence that would otherwise be inadmissible.

Imagine if Masterson had taken the stand and lost his composure a bit during cross-examination. Not that he totally imploded like Colonel Nathan Jessup did on the witness stand in the classic trial movie “Some good men.” Instead, say he mentioned something seemingly innocuous like, “I’m one.” good guy. I am not a violent man.” Sounds innocent enough, but according to 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 has done in the past. But if the defendant himself takes the stand and introduces the question of his own good character, then it’s game on. The prosecution can now present evidence of bad character.

Sounds confusing? It is. It’s confusing for lawyers. Defendants testifying in their own criminal trial, with no legal training and adrenaline rushes, can’t possibly expect to navigate these rules without putting themselves in danger — even if they’re famous performers used to memorizing lines. (This was the scenario that played out when actor Amber Heard named ex-husband Johnny Depp’s former girlfriend Kate Moss in his defamation suit against her, which his lawyers subsequently pounced on.)

And the doorway rule would not have applied just to Masterson, but any witness who calls the defense. Therefore, it is risky for a defendant to present evidence at all. Suspects often rest without calling witnesses.

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

If the defendant tries to prove an alternate theory of the alleged crime, such as “another guy did it” (often SODDI among criminal defense attorneys), the suspect may have to call witnesses. However, that turned out not to be Masterson’s strategy. His strategy seemed simpler and much more common: “They’re lying.” If this is the defense’s battle plan, then it was probably safer to use their closing argument to point out inconsistencies in the state’s case, such as a prosecutor’s lack of credibility or gaps in memory.

And even if the prosecution’s testimony is largely credible, that doesn’t mean it will be enough to convict anyone. If the evidence suggests that the defendant was probably guilty, then “probably guilty” is not “guilty”. In fact, probable guilt is ‘not guilty’ since it is by definition not guilty beyond a reasonable doubt. An assessment of probable guilt at the conclusion of the prosecution’s case is “winning” for the defense.

Then, if the defense starts calling witnesses and things go badly, a defendant could lose a case they had won. And if the defendant testifies and the jury doesn’t believe even one thing he says, it’s probably over.

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

Since the first trial has now ended in a hung jury, the defense may reconsider their original strategy. That the jury was deadlocked at all means it was at least a close call. But it also means there were some votes for a conviction. That means it could be safer to forego defense again. A hung jury is better than a conviction.

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