Danny Masterson tries a hung jury giving the defense team a second chance with this strategy

The judge presiding over the rape case against «That ’70s Show» star Danny Masterson declared a mistrial Wednesday after the jury said it was hopelessly deadlocked.

With a new trial already scheduled for March 27, Masterson, 46, still faces up to 45 years in prison if convicted of raping three women in his Hollywood Hills home between 2001 and 2003.

There is an old saying that there is no louder sound in criminal court than the silence of the defendant. It is true.

The actor has denied all the accusations. But he never told the jury that directly, as his the lawyers never called him to the stand, or any other witness. Why not? Why didn’t Masterson take the stand to deny these accusations against him? Why didn’t the defense call any witnesses? And is it wise for his legal team to implement the same strategy at his next trial?

Probably the most basic reason Masterson’s lawyers didn’t call him was that they didn’t have to. A criminal defendant is alleged be innocent. That means the prosecution must prove the defendant guilty beyond a reasonable doubt. This is an instruction that judges give to juries in criminal cases in the California state courts, where Masterson’s case was heard.

California juries are also instructed in some version of the following: A defendant has “an absolute constitutional right Correct not testify.» The jury cannot consider, for any reason, the fact that a defendant does not testify. California juries are told not to even discuss it during deliberations. It’s the thing-that-can’t-be-mentioned.

This means that the defendant is not required to testify, present evidence, or call any witnesses. He can only point out the weaknesses in the prosecutor’s case. In other words, in rape cases, the evidentiary standard is rarely “he said, she said”. It’s more like, «she said, he didn’t say anything, and you can’t blame him for that.»

But that doesn’t mean the lack of defense witnesses doesn’t have an impact on the jury. One person accuses the defendant and describes what happened. When the defendant says nothing, the only story in the file is the accuser’s. Are jurors supposed to assume that the defendant’s false story, whatever it is, is more credible than the accuser’s story? That is not plausible.

There is an old saying that there is no louder sound in criminal court than the silence of the defendant. It is true. I don’t care how many instructions the judge gives the jury about the presumption of innocence and the defendant’s right not to testify. A jury wants to hear from a defendant.

The problem is that it is often too risky. And that’s why the decision not to put Masterson or other defense witnesses on the stand made sense.

Criminal defendants testify in a minefield that prosecutors do not. For starters, a criminal defendant could inadvertently «open the door» to damaging evidence that would otherwise be inadmissible.

Imagine if Masterson had taken the stand and, during cross-examination, had lost his composure a bit. Not that he completely imploded, the way Colonel Nathan Jessup did on the witness stand in the classic trial movie. «A few good men.” Instead, suppose she mentioned something seemingly innocuous like, «I’m a Good Guy. I’m not a violent guy.» Sounds harmless enough, but by the rules of evidence, he might as well have stepped on a claymore mine.

Under these rules, the prosecution cannot fool a defendant with evidence of unrelated wrongdoing that he or she has done in the past. But if the defendant himself takes the stand and introduces the subject of his own good character, then is the game on. The prosecution can now present evidence of bad character.

Sound confusing? This. It’s confusing for lawyers. Defendants testifying in their own criminal trial, with no legal training and sky-high adrenaline levels, cannot hope to navigate these rules without putting themselves in jeopardy, even when they are celebrity performers used to memorizing lines. (This was the scenario that played out when actor Amber Heard brought up ex-husband Johnny Depp’s ex-girlfriend, Kate Moss, in his defamation case against her, which her lawyers pounced on.)

And the open-door rule would not have applied just to Masterson, but to any witnesses the defense calls. That is why it is risky for a defendant to present evidence. Defendants frequently rest without calling any witnesses.

Defendants testifying in their own criminal trial, with no legal training and sky-high adrenaline levels, cannot hope to navigate these rules without putting themselves in jeopardy.

If the defendant is trying to prove an alternative theory of the alleged crime, such as «some other guy did it» (often called SODDI among criminal defense lawyers), then the defendant may have to call witnesses. However, that did not appear to be Masterson’s strategy. His strategy seemed to be simpler and much more common: «They are lying.» If this is the defense’s battle plan, then it was probably safer to use his closing argument to point out inconsistencies in the state’s case, such as the accuser’s lack of credibility or memory gaps.

And even if the accuser’s testimony is mostly credible, that doesn’t mean it will be enough to convict someone. If the evidence suggests that the defendant was probably guilty, well, «probably guilty» is not «guilty.» In fact, probable guilt is «not guilty» since by definition it is not guilt beyond a reasonable doubt. An assessment of probable guilt at the close of the prosecution’s case is a «win» for the defense.

If the defense starts calling witnesses and things go wrong, the defendant may lose a case they had been winning. And if the defendant testifies and the jury doesn’t believe a single thing he says, it’s probably over.

Ultimately, defense attorneys like myself are mostly risk averse. Nobody wants to be a cautionary tale: The defense team that was winning when the prosecution finished their case, but lost because of the witnesses they later called.

Because the first trial has now ended with a split jury, the defense may reconsider its original strategy. That the jury deadlocked means it was at least close. But it also means there were some votes for a guilty verdict. That means the safest course might be to again refuse to defend yourself. A hung jury is better than a conviction.