Facing the prospect of decades in prison, former FTX executive Sam Bankman-Fried needs to make a critical decision: Should he testify in his own defense in an ongoing fraud trial in a Manhattan courtroom?
Talk to former prosecutor wealth said testifying could help Bankman-Fried explain his intentions to the jury. But he will also be questioned by prosecutors, which could end up causing more harm.
Rachel Maimin, a former assistant U.S. attorney for the Southern District of New York, said it’s always a gamble to get a defendant on the stand. Despite the possible downsides, testifying could give Bankman-Fried a chance to present a different version of herself than the one presented by prosecutors.
“When a defendant testifies, even if the confession they make doesn’t really help, it’s very powerful because it really humanizes them in front of the jury, and nothing can replace that,” Mymin said. Now a partner Lowenstein Sandler’s White Collar Criminal Defense Practice.
For an outspoken former media darling like Bankman-Fried, the decision may have been easy, he said Renato MariottiServed as a federal prosecutor in the Securities and Commodities Fraud Section of the U.S. Attorney’s Office for the Northern District of Illinois.Despite whatever logic supports remaining silent in the face of possible criminal charges, SBF chose to conduct multiple interviews following the FTX debacle, including one broadcast live on FTX New York TimesDealBook Summit last November.
Mariotti, a partner at Bryan Cave Leighton Paisner, said it would be out of character for Bankman-Fried not to testify if things don’t go well. Even if it’s a last ditch effort.
“Given the SBF’s desire to negotiate a resolution to this issue and his belief that he is the smartest person in the room, I think he would be willing to testify no matter what advice he receives,” Mariotti said.
If he chooses to testify, prosecutors can use cross-examination to trick him into contradicting himself or admitting things he shouldn’t. If he is found guilty, a judge could conclude he lied on the witness stand and could impose a harsher sentence under federal sentencing guidelines. Mariotti explained that if he was found not guilty, he could still theoretically face perjury charges, but prosecutors would be unlikely to hold him accountable for it.
First, prosecutors may try to get him to admit something he can’t possibly deny because of the strength of the documentary evidence, Maiming said. After he admits to something smaller, prosecutors can force him to admit something less obvious, such as details of his conversations with others.
“The goal is to essentially get him to agree with you so that you ultimately get him to agree with you that he has the necessary state of mind to be found guilty,” she said.
During the first week of his trial, Bankman-Fried watched several former allies testify against him, including co-founder and former FTX chief technology officer Gary Wang, and former FTX employee and MIT classmate Adam Yedidia. His ex-girlfriend, former Alameda Research CEO Carolyn Allison, is expected to testify on Tuesday.
Whether Bankman-Fried chooses to testify, that decision likely won’t be made until near the end of the trial, which is expected to take about six weeks.
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