The Disappearing Defendant: Smart Strategy or Critical Error

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

The Sixth Amendment guarantees the right to have an attorney present during criminal proceedings to every criminal defendant.[1] Since the amendment was ratified, courts have modified that guarantee to require that defendants not only have a right to counsel, but have a right to effective assistance of counsel. The issue of effectiveness of counsel has been evaluated based on a number of conditions, one of which is the decision to call the defendant to testify at trial. The decision to call a defendant to testify at trial involves weighing complex influences and ultimately, determining that the potential positive effects outweighs the significant risk.[2] This critical decision troubles defense attorneys and the attorney often shies away from putting his client on the stand. However, if an attorney does decide to call the defendant to testify, then later changes his mind, is that ineffective assistance? Federal courts have answered this question differently and though their analyses initially seems to suggest the issue is unsettled, in reality they apply similar factual analyses to different factual scenarios.

In 2002, the First Circuit found that an attorney’s promise to present the defendant’s testimony at trial and then failure to do so met the standard of ineffective assistance of counsel.[3] However, the Eighth Circuit split from the First Circuit’s ruling in 2017.[4] This split led to the question at hand: whether promising the jury during opening statements that they would hear from the defendant then choosing not to call the defendant at trial equates to ineffective assistance of counsel. The answer lies in the events that unfolded during the trial. It is reasonable for an attorney to choose not to call a defendant in light of changed circumstances.[5] However, if nothing unforeseeable occurs during trial, the attorney’s choice not to call the defendant after promising to do so is deemed ineffective assistance of counsel.

Ouber v. Guarino

In 2002, an inmate sought habeas corpus relief in a federal district court on a drug-trafficking conviction.[6] Her claim of ineffectiveness of counsel was based on her attorney’s repeated promise to the jury during opening statements that they would hear from the defendant and then later decided not to call the defendant at trial.[7] The defendant faced a significant battle to be heard on the issue. The defendant was only heard in federal court on this petition after the trial court denied her motion for a new trial. However, the federal district court granted her habeas petition based on the Massachusetts Appeals Court’s unreasonable application of the widely-used Strickland standard.[8]

In Strickland v. Washington, the court laid out the controlling standard for deciding ineffective assistance of counsel claims, namely that the defendant must show (1) that counsel’s performance was deficient; and (2) the deficient performance by counsel prejudiced the defense.[9] In applying this standard, the district court first addressed the deficiency prong, also referred to as the “performance prong.” To show that the counsel’s performance was deficient, counsel’s error must be so serious that counsel is considered not functioning within the guarantees of the Sixth Amendment.[10] This difficult standard is made more burdensome by the fact that Strickland requires significant deference in favor of the attorney.[11] Nevertheless, the district court found that Ouber’s attorney met that standard.[12] Specifically, the court found that the attorney’s decision to present the petitioner’s testimony as the centerpiece of the defense coupled with his later decision not to call the defendant rose to the level of a violation of the first Strickland prong.[13]

The court repeatedly emphasized the fact that the information the attorney had during his opening statement had not changed between the attorney’s initial promise and his subsequent decision not to call the defendant.[14] The court stressed that the testimony elicited during the trial was exactly what the attorney expected when he made his opening statement where he promised the jury not once, but four times, that the defendant would testify.[15] In addition, the court based its holding on the fact that the attorney failed to inform the petitioner about the possible negative impact of not testifying.[16] In the eyes of the court, the decision to advise the client not to testify with no circumstantial changes and the lack of explanation given to the petitioner about the possible negative effects of that decision rose to the level of a violation of the petitioner’s Sixth Amendment right to effective counsel.[17]

However, finding that counsel was ineffective is only the first hurdle to proving an ineffective assistance of counsel claim.[18] Strickland dictates that the court must then show that the error of counsel prejudiced the petitioner in some way.[19] An error will be found prejudicial if there is a strong possibility that it affected the outcome of the case.[20] Although this is often difficult to prove, prejudicial error was clear in Ouber.[21] The petitioner’s conviction came in not her first, but rather her third trial on the issue after the first two trials resulted in mistrials.[22] The only substantial difference in the third trial was the absence of her testimony as a witness in the case.[23] Noting this departure from the first two trials and the difference in outcome, the court found that the decision not to call the petitioner was outcome determinative and prejudiced the defendant.[24] Ultimately, the court found that the state court misapplied the Strickland standard and failed to correctly conclude that defense counsel’s actions rose to the level of ineffective assistance of counsel.[25]

Bahtouch v. Smith

Recently, the Eighth Circuit reexamined the issue of ineffective assistance of counsel based on a failed promise to have the defendant testify in Bahtuoh v. Smith.[26] Here, contrary to Ouber, the court denied the petitioner’s habeas petition, finding the defense attorney’s decision not to call the defendant to testify after promising to do so in opening statements did not rise to the level of a Sixth Amendment violation.[27] Again applying the standards set forth in Strickland, the Eighth Circuit found the Minnesota Supreme Court’s application of Strickland’s performance prong was reasonable.[28]

During the trial, the prosecution presented a witness that offered testimony defense counsel did not expect. That unforeseen testimony made the defendant’s testimony seemingly unnecessary and defense counsel decided against calling the defendant as a witness.[29] In this scenario, the court found that the decision not to call the defendant was reasonable given the unexpected change during the trial.[30]

Reviewing the state court’s application of Strickland, the Eighth Circuit referenced Ouber v. Guarino and the seemingly inconsistent holding, noting a key difference in the circumstances of the two cases.[31] The court stressed that in Ouber there was no change or unforeseen development in the case between the counsel’s opening statement promise and his decision to not call his client. Conversely, in Bahtouh there was a development – namely that the prosecution’s witness presented the information that the defense counsel hoped to elicit from the defendant’s testimony– and thus the change in strategy was justified.[32]

The Key Difference

Although Bahtouh and Ouber appear to be exact opposites, there is an important distinction that makes each case a proper application of the Strickland standard and renders the cases compatible. The developments during the trial were distinct. Critical to the outcome of both cases was whether there were any unexpected developments during trial that justified the decision not to call the defendant. Both courts correctly analyzed the issue using the established standard for evaluating ineffective assistance of counsel claims and applied that standard to the differing factual situations.

In Ouber, the lack of unexpected developments during trial made the decision not to call the defendant ineffective just as the presence of unexpected developments in Bahtuoh validated the opposite conclusion. This key difference in the two trials not only explains the difference in the outcomes, but is in harmony with common sense. A defense attorney making a decision based on new information gained at trial should not be held as ineffective simply because their evaluation of the new information happened to lead to a conviction. Conversely, if an attorney makes an explicit promise to call the defendant and fails to fulfill that promise without cause, the attorney should be held accountable for that poor judgment.

Both courts correctly analyzed the ineffective assistance of counsel issue and the specific question addressed in these cases involving the promise to call the defendant as a witness is not left unresolved. The Bahtuoh court was able to clearly distinguish the facts of their case from the previous ruling in Ouber thus justifying their opposite holding. Both holdings can be properly applied to future cases involving ineffective assistance of counsel claims depending on the developments that take place during the trial.


The First and Eighth Circuits both correctly applied the Strickland standard in their review of the respective cases. The apparent split between the two courts on the ineffectiveness of counsel claims is instead the same analysis that rendered opposite conclusions. Those different holdings are merely based on factual differences in the two cases. The two decisions both stand for the central conclusion that the dispositive factor in determining ineffectiveness of counsel in the above situation is whether anything changed between the opening statement and the decision not to call the defendant as a witness at trial. If such a change or unexpected development occurs, counsel can reevaluate the situation and make an informed decision about the value of calling the defendant without being rendered as ineffective. On the other hand, if no such development exists, counsel will be found ineffective if he reneges on his promise.

[1] “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const. Amendment I

[2] The risk of harm to the defendant’s credibility through cross examination often outweighs any good will that can be established through direct.

[3] Ouber v. Guarino, 293 F.3d 19, 20 (1st Cir. Mass. 2002); Ineffective assistance of counsel is found when the attorney’s performance is considered not to have met the Sixth Amendment guarantee for assistance of counsel in defense at criminal trials.

[4] Bahtuoh v. Smith, 855 F.3d 868, 874 (8th Cir. Minn. 2017).

[5] Changed circumstances can be information that comes out during trial that was unknown to the attorney during opening statements or otherwise unforeseen events that develop throughout trial.

[6] Ouber, 293 F.3d at 20.

[7] 20.

[8] Ouber, 293 F.3d at 25.

[9] 466 U.S. 668, 687 (U.S. 1984).

[10] Id.

[11] Id.

[12] Ouber, 293 F.3d at 36.

[13] Id. at 23.

[14] Id. at 25.

[15] Id. at 28.

[16] Id. at 31.

[17] Ouber, 293 F.3d at 32.

[18] Strickland, 466 U.S. at 691.

[19] Ouber, 293 F.3d at 25.

[20] Strickland, 466 U.S. at 693-694.

[21] Ouber, 293 F.3d at 26.

[22] Id. at 21.

[23] Id. at 35.

[24] Id.

[25] Id.

[26] Bahtuoh, 855 F.3d at 874.

[27] Id.

[28] Id. at 872.

[29] Id.

[30] Bahtuoh, 855 F.3d at 873.

[31] Id.

[32] Id. at 872- 873.

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