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At prep school rape trial, defendant faces uphill battle in taking the stand

Labrie is expected to testify in order to tell his side of the story. In fact, he may be the only witness his defense team calls.

In any sex crimes trial, the testimony of an alleged victim is typically crucial. Yet Owen Labrie, the 19-year-old defendant accused of raping a fellow student at an elite New Hampshire prep school, may provide the testimony that makes or breaks his case when he takes the stand this week.

Labrie -- who has pleaded not guilty to all of the charges against him -- is expected to testify in order to tell his side of the story. In fact, he may be the only witness his defense team calls, his lawyer said Monday. 

The high-stakes decision reflects a calculated risk – defendants have no obligation to testify, since criminal law puts the entire burden of proof on the prosecution. 

“It’s unusual that I’m putting my witness on the stand, but it’s always a decision that I leave up to the client,” lawyer J.W. Carney told reporters outside the courtroom.

RELATED: Accuser in St. Paul's rape trial gives emotional testimony

Leonard Harden, a veteran criminal defense lawyer in New Hampshire, said it is rare to call a defendant in felony trials. “I frequently do not call any witnesses,” he told msnbc, “most defense lawyers do not call any witnesses.”

Roughly half of felony defendants choose not to testify, though those with no criminal record are more likely to take the stand, according to a 2009 study of trials in large American cities.

Some legal experts are surprised Labrie would testify, given the evidence presented so far.

“When you have a situation like this, where there’s a lot of ambiguous facts, and the burden rests solely with the prosecution, I think there’s reasonable doubt that’s ample enough for the defense to rest on the presumption of innocence,” said Michael Connolly, a former federal prosecutor in New Hampshire. 

The trial has included testimony that the accuser initially referred to the encounter with Labrie as consensual, potentially undercutting the prosecution’s case for felony rape charges.

As a legal strategy, testimony by the defendant can risk shifting the emphasis from the prosecution’s case – and any of its holes – to the defendant’s credibility.

RELATED: Teen accuser recounts night of alleged assault at St. Paul's School

“When you introduce evidence or witnesses, you’re not shifting the burden, but you’re changing the formula for the jury,” said Harden, who has argued criminal cases for over 20 years. When defendants testify, he said, “juries tend to assess the case as two questions, “Did the government prove its case beyond a reasonable doubt? And, did that guy come across genuinely?”

Jonathan Cohen, a criminal defense attorney who has tried hundreds of cases in New Hampshire, believes a defendant’s testimony not only shifts the focus away from the government, but also away from the accuser.

“Conventional wisdom in a case like this, where credibility is an issue, is that if the defendant doesn’t take the stand, then the case is about the credibility of the complainant,” he said, and if Labrie testifies, “then it becomes about the credibility of the defendant.”

Cohen, who works at a law firm a block from the courthouse hosting Labrie’s trial, emphasized another factor impacting trial strategy in the era of social media. 

“As a defense lawyer, you’re always going to take into consideration how many statements are out there already,” he told msnbc. “If they’ve made other incriminating statements, you may want to explain them.” 

RELATED: Accuser in prep school rape trial takes the stand

The trial has featured electronic and Facebook messages that seemed to undermine Labrie’s assertion that he never had intercourse with the accuser. (Other messages also seemed to undermine some of the accuser’s claims.) Testifying gives Labrie a chance to put any apparent discrepancies in context.

Even if jurors are left with reasonable doubts about whether the accuser’s contact with Labrie was coerced, he also faces sex crimes charges that do not require non-consensual conduct. 

New Hampshire prosecutors charged him with several misdemeanors relating to luring, assaulting and having sexual contact with a minor. Those crimes are defined partly by the victim’s age – the accuser was 15, below New Hampshire’s age of consent – and the jury can convict on those misdemeanors even if the accuser participated willingly, or even if they find no intercourse occurred.

Given the range of evidence suggesting Labrie had some contact with the accuser (he told police and friends about it), it is hard to see how his defense could prevail on those misdemeanor charges. 

On that point, Cohen said it’s unclear whether the defense team has a “strategy to defend the misdemeanor sexual assault.” He added, “I’ve never seen a jury come back on a statutory [rape] situation and choose not to convict – it seems highly unlikely.”