Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided not to take the stand. That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.
But with the New York criminal jury trial concluded and Trump’s sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture. Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the “defendant also has the right to make a statement personally in his or her own behalf.” I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination. In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.
That said, any statement by Trump at his sentencing still could be full of legal risks. In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way. And, in light of Trump’s many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel’s legendary book, Criminal Sentences: Law Without Order:
[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing, Judge X … told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years’ imprisonment. At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf. The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the “kangaroo court” in which he’d been tried, and the legal establishment in general. Completing the story, Judge X said, “I listened without interrupting. Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four.”
I think it will be quite interesting to see if Trump decides to exercise his right under New York law “to make a statement personally” prior to his sentencing. The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right. But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.