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Its a reliably memorable scene in any courtroom drama: The lawyer stands up to call the next witness, the door swings open, and its the priest who testifies he was at a Yankees game with the accused at the time of the crime and has ticket stubs to prove it! The decedents daughter, who stepped out of the shower to find her fathers bloody body, only to be exposed as an extravagantly permed fraud by Elle Woods! Mocha Joe, back to exact vengeance on Larry David for his spite store! As attorney extraordinaire (and personal role model) Lionel Hutz advised his client, Homer Simpson: I have a foolproof strategy to get you out of here: surprise witnesses, each more surprising than the last!

But in real life, I regret to inform you, there are no surprise witnesses. To the contrary, judges typically require prosecutors to disclose the names of their upcoming witnesses at least a day in advance, and often more than that. Its a matter of practicality, and it goes to the defendants fundamental right to defend himself; its difficult for a defense lawyer to prepare for the next day if he doesnt know who exactly hell be cross-examining. I once tried to get cute and told the judge at the end of a trial day I wasnt sure who Id be calling the next morning. The judge retorted, Either give us your witnesses names right now or dont bother showing up tomorrow. Point taken.

Yet when it comes to witness lists and, to be sure, in other respects the ongoing trial of Donald Trump in Manhattan is more like a movie than real life. Judge Juan Merchan, in a departure from normal practice, has permitted the prosecution to call its witnesses on the fly with a bare minimum of advance notice to the defense. The DA has turned over a witness list containing dozens of names, and Trumps team has a general idea who the witnesses will be but as to who will testify when, the defense is learning at essentially the same time as the rest of us.

Judge Merchan has reasoned that Trump cant be trusted not to publicly attack upcoming witnesses, and therefore has forfeited his right to advance notice. Hey, when you violate a gag order ten times, you suffer the consequences. When Trumps lawyer Todd Blanche promised that hed personally ensure that Trump refrained from public comment about upcoming witnesses, the judge responded, I dont think you can make that representation. Tough but fair.

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The result makes life harder for Trumps defense team, but it also makes the trial more cinematic for all of us. Whos next? Did we see anyone entering the courthouse? Could Stormy Daniels be up? Karen McDougal? Wheres Michael Cohen today? Hope Hicks reportedly drew gasps from the assembled media and courtroom observers when prosecutors called her to the stand.

Alas, there will be no surprise when it comes time for the biggest potential witness of all: the defendant himself, Donald John Trump. Let me preempt the Hamlet routine that surely will play out over the next couple weeks, the to be or not to be around whether Trump will take the stand in his own defense: He shouldnt, and he wont.

Trump, like any defendant, has an unconditional right to testify or not to testify. Nor can the prosecutor make any comment or ask the jury to draw any inference from any defendants decision not to take the stand. (It hardly needs to be said, but just to clear up any confusion: Contrary to Trumps preposterous courthouse rant, the gag order has zero to do with his ability to take the stand in his own defense.)

We can already see Trumps subtle but unmistakable retreat from bluster to sanity. At first, Trump boasted that he would testify in his own defense. Note the careful word choice: Would, which includes an element of conditionality, isnt quite the same as will. Days later, he prudently stepped back: Well, I would if its necessary. Right now, I dont know if you heard about today. Today was just incredible. People are saying the experts, Im talking about legal scholars and experts theyre saying, What kind of a case is this? There is no case.

Few legal scholars are saying quite that, of course, but, overstatement aside, Trump has the right strategic idea here. Indeed, hes got two ironclad reasons not to testify.

First: Hed get annihilated. Trump wouldnt necessarily suffer a Colonel Jessup Youre goddamn right I did! moment his self-preservation instincts are too strong for that but hed surely get twisted in a pretzel when confronted with the difficult questions posed by the prosecutions case. Did he in fact have affairs with McDougal and Daniels? If not, why did he falsely deny knowing them? Did he know about the hush-money payments made for his benefit? Did he authorize them? Why? And why did he falsely claim publicly to know nothing about the women and the payoffs? Why did he sign a series of reimbursement checks to Michael Cohen? Theres little chance hed offer coherent, consistent, plausible explanations.

Thats the risk whenever a defendant takes the stand: It essentially shifts the burden of proof to the defense table. Typically, if the jurors believe the defendant lies on the stand, its over. Cross-examination would simply be too fraught for Trump. He has every right to duck it, and hed be foolish to waive that right and expose himself here.

That brings us to the second point: Trump doesnt need to take the stand in his own defense. Thats not to argue that hes got an acquittal locked up, not by any stretch. (I still believe a conviction is more likely than not on balance.) But its become clear that his lawyers have all the ammunition they need to raise a defense, even without the risk of putting the client on the stand. Why take the risk of calling Trump to the stand to deny his sexual tryst with Daniels when she already signed a statement in 2018 declaring I am denying this affair because it never happened? Why does Trump need to swear he never dealt with Jeffrey McConney about the internal accounting behind hush-money reimbursements when McConney admitted the same in cross? Why must Trump proclaim Michael Cohen a liar when virtually every prosecution witness who has ever met the infamous Fixer has ranted about how he is (or was) a mendacious sleaze?

Indeed, if Trump takes the stand, the whole case will rise or fall on his testimony. If he doesnt, it likely will turn on Cohens. From the perspective of Trumps legal team, thats an easy call.

Weve seen this routine before. Trump vowed that he would testify, wanted to testify, was aching to testify before Robert Mueller, in Congress, and in some of his civil matters before he bailed out and avoided examination under oath. He did testify (sort of) at two of his recent civil trials involving E. Jean Carroll and business fraud in New York. But if Trump thinks those experiences prepared him for a criminal trial, hes mistaken. Both times he testified in civil court, the examinations were narrow, his testimony lasted only minutes, and he essentially self-destructed on the stand anyway. In criminal court, the restrictor plates come off, and prosecutors can drill Trump about the core allegations against him for as long as they please.

As we move toward the end phase of this trial, my sense is that both sides should be satisfied not overjoyed, but satisfied with how the case has gone. Prosecutors have done a solid, workmanlike job building their case, and Trumps lawyers have planted the seeds of reasonable doubt. As a defense attorney, thats about the best you can hope for at this point: Youre in the game and youve got a shot to pull it out. To call Trump to the stand would upend the trial and shove all the defense chips over to an extraordinarily risky bet. For all his public bluster and equivocation, theres simply no way Trump will engage in unilaterally assured self-destruction.

This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com

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Will Donald Trump Take the Stand at His Trial? - New York Magazine