Bryan Cave Leighton Paisner LLP partner Renato Mariotti explains why it is "very surprising" for Sam Bankman-Fried to testify in front the judge without the presence of the jury.
It is very, very surprising. I, I've been practicing criminal law for decades. Uh I've tried many, many criminal trials and watched many others and I've never seen testimony go on this long without the jury present. Uh I think the reason the judge did it is actually something that you guys talked about a minute ago, which is, uh SPF constantly talking about lawyers. So in criminal law, there is something called an advice of counsel defense. It's a very specific thing in the law and you, you have to give notice beforehand before the trial starts to the government to the prosecutors and say that you are asserting it. And then you actually have to waive attorney client privilege between yourself and the attorney and what you have to prove in order to make out that defense is you have to make it clear and, and demonstrate that you have let those lawyers know about all the relevant facts and that they approved of or authorized all of the activity that you're charged with. As you can imagine, it is very rare for defendants to actually be able to, uh, you know, have testimony from lawyers that are going to establish that. And so they try to get around that by having what I'll call a quasi advice of counsel defense. And that's really what SPF is trying to do here. He's basically saying, yeah, there's a bunch of lawyers running around and they were on the scenes and things like that. So, uh I presume that they were taking care of this. I presume that they were on top of it and they were making sure it was legal and that's not a divisive counsel defense. And I think what the judge is trying to understand here is, is there enough here that goes to his state of mind, which is relevant, which is, you know, something that would actually be helpful to the jury or is SPF and his team, are, they really just trying to confuse the jury and essentially try to confuse the issues? That's what I think the judge is trying to understand.