EXPLAINER: Chauvin jurors must disregard defendant's silence

Jurors at the trial of the former Minneapolis police officer accused in George Floyd’s death have been instructed not to take into account his choice to remain silent when they consider whether to find him guilty of murder and manslaughter

George Floyd Officer Trial

Jurors at the murder trial of the former Minneapolis police officer accused in George Floyd’s death were told Monday that his choice to remain silent cannot affect their decision.

Derek Chauvin on Thursday said he would not to testify in his own defense, invoking his right to remain silent and leave the burden of proof on the state.

It was a high-stakes decision. Taking the stand could have helped humanize Chauvin to jurors who didn't heard from him directly at trial, but it could also have opened him up to a devastating cross-examination.

Legal experts widely agree that jurors often consider a defendant's silence as a sign of guilt, despite the type of instructions that Hennepin County Judge Peter Cahill read aloud Monday before attorneys began their closing arguments.

Chauvin's right not to testify “is guaranteed by the federal and state constitutions,” he said. “You should not draw any inference from the fact that the defendant has not testified in this case."

Chauvin is charged with second- and third-degree murder and manslaughter. Here’s a look at some of the issues that likely went into Chauvin’s decision not to take the stand:

DID JURORS WANT TO HEAR FROM CHAUVIN?

Probably, yes.

Cahill questioned Chauvin on Thursday to ensure he understood the ramifications of not testifying, and that the final decision was his and not his attorney's. Chauvin affirmed his decision to remain silent was voluntary.

But legal experts widely agree that many jurors interpret a defendant’s silence as evidence of guilt.

Minnesota defense attorney Mike Brandt said during the trial that he thought jurors would be disappointed if Chauvin didn't take the stand, saying they needed to “hear his explanation of why he did what he did.”

WHY MIGHT CHAUVIN HAVE WANTED TO TESTIFY?

Images from bystander video of Chauvin pinning Floyd to the pavement, his face impassive, were played nearly every day at trial and are likely seared into the minds of many jurors.

The face mask Chauvin has been required to wear in court because of the pandemic hid any possible display of emotion during testimony. Taking the stand would have given him a chance to explain the video and show another side, maybe giving the jury a reason to convict him only of manslaughter.

Phil Turner, a former federal prosecutor in Chicago said last week that Chauvin had nothing to lose by testifying, especially because “that video is so damaging.”

He said: “You’ve got to get up there and give an explanation. It’s a no-brainer.”

Multiple witnesses and video evidence showed Chauvin pinning Floyd for almost 9 1/2 minutes, well beyond the time Floyd stopped moving and a fellow officer said he could not find a pulse.

COULD TESTIFYING HAVE HURT CHAUVIN’S CASE?

Definitely.

Answering sympathetic questions from his own lawyer wouldn’t have been a problem. But cross-examination could have increased his odds of conviction. Prosecutors could have played bystander video of Chauvin, who is white, pinning Floyd — a Black man — and paused it every few seconds to ask why he stayed on top of Floyd.

Defense attorney Eric Nelson said Thursday that the decision for Chauvin to not take the stand had not been easy.

“‘We have gone back and forth on the matter’ would be kind of an understatement, right?” Nelson asked Chauvin.

“Yes it is,” Chauvin replied.

As the defense developed its case — through cross-examination of the state’s witnesses and its own witness testimonies — the need for Chauvin to testify faded, Brandt said.

Chauvin surely would have been subjected to a “very thorough, probing and brutal” cross-examination from the prosecution, Brandt said.

WAS CHAUVIN LIKABLE ENOUGH TO TESTIFY?

Most lawyers want to be sure jurors will like their clients before putting them on the stand.

“Chauvin doesn’t come across as a warm and pleasant person. And jurors want to see a caring and empathetic person. That is the one big liability: If jurors don’t like Chauvin, his fate is sealed,” Brandt said.

Chicago-based attorney Steve Greenberg agreed. If Chauvin rubbed jurors the wrong way, it could have backfired, Greenberg said.

WHAT COULD CHAUVIN HAVE SAID IN HIS DEFENSE?

The U.S. Supreme Court has ruled that officers’ actions that lead to a suspect’s death can be legal if the officers believed their lives were at risk — even if, in hindsight, they were wrong. Only Chauvin could speak to what he was thinking that day, Turner said.

Chauvin could have told jurors he’s not a doctor and couldn’t have known Floyd was dying, said Turner. He could have said he kept his knee on Floyd because, from his experience, he knew larger suspects were capable of breaking free and posing a threat.

His lawyer could have had Chauvin testify that he was worried about Floyd’s well-being, and he might have said he wasn’t pressing hard on Floyd’s neck, despite expert testimony that calculated half his body weight plus gear was on Floyd at least part of the time.

WHAT WERE THE ODDS HE WOULD TESTIFY?

Not good. Greenberg said lawyers at murder trials typically don’t want their clients to testify. In more than 100 murder trials, he said fewer than 10 of his clients took the stand.

“When defendants do testify, it is usually a Hail Mary pass” by a desperate defense that believes it has slim chance of acquittal on any charges, Greenberg said.

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Tarm reported from Chicago. Kathleen Foody contributed from Chicago.

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Find AP’s full coverage of the death of George Floyd at: https://apnews.com/hub/death-of-george-floyd