Jussie Smollett taking the stand could be a double-edged sword in alleged hate crime hoax case, attorneys say

Jussie Smollett to appear in court for status hearing on felony charges

Criminal defense attorney Jonna Spilbor analyzes the status hearing of actor Jussie Smollett regarding felony charges for filing a false police report

The trial of Jussie Smollett kicks off on Monday, nearly three years after the 39-year-old actor allegedly orchestrated a hate crime against himself, telling police that two White men in MAGA hats attacked him, shouted slurs, and put a noose around his neck. 

Just weeks after the alleged assault, two brothers who knew Smollett through the television show “Empire,” Abimbola and Olabinjo Osundairo, told police that Smollett actually paid them $3,500 to stage the whole thing. 

The case has polarized the nation due to the politically- and racially-charged nature of the alleged hoax, and Americans nationwide will be watching intently to see if Smollett defends himself by taking the witness stand, a move that defense attorneys and prosecutors tell Fox News could make or break the case. 

In this Feb. 24, 2020 file photo, former "Empire" actor Jussie Smollett leaves the Leighton Criminal Courthouse in Chicago, after an initial court appearance on a new set of charges alleging that he lied to police about being targeted in a racist and homophobic attack in downtown Chicago early last year. 
(AP Photo/Matt Marton File)

Mark Eiglarsh, a criminal defense attorney with more than 150 trials under his belt, said that he normally does not advise his clients to testify, but it might be necessary for Smollett, a Black gay man, to testify in this case. 

“I think this is one of those rare cases where he might have to take the witness stand. He’s an actor, so he has an advantage over almost anyone who is going to take the witness stand. He knows how to portray characters, so he’d be playing the role potentially of a person who has been victimized by the prosecution repeatedly, and someone who has suffered a vicious attack,” Eiglarsh told Fox News Digital. 

“If he wasn’t a good actor, I’d say it might be too risky, but he’s an excellent actor. That’s what he does for a living.”

In this May 20, 2016, file photo, actor and singer Jussie Smollett attends the "Empire" FYC Event in Los Angeles. (Richard Shotwell/Invision/AP, File)

Stephen Komie, a criminal defense attorney based in Chicago, noted that Smollett is already accused of lying to authorities and could end up in prison if he lies to the judge. 

“He is his own most dangerous enemy if he gets on the witness stand,” Komie told Fox News Digital. “That’s what could trigger a ride to the penitentiary. Judges do not like perjury.”

Smollett was charged with six felony counts of disorderly conduct for making false reports to police in February 2020 after a special prosecutor took over the case. 

He was originally charged with disorderly conduct in February 2019, but the charges were dropped the next month with little explanation, angering city and police officials in Chicago. 

If convicted, he could be sentenced to anywhere from probation and community service to up to three years in prison. 

Randy Zelin, the head of the criminal practice at Wilk Auslander LLP and an adjunct professor of law at Cornell University, also said that taking the stand could be a risky move for Smollett.

“If he gets on the stand, and he basically insults the judge’s intelligence, that could send him to jail,” Zelin told Fox News Digital. 

Actor Jussie Smollett smiles and waves to supporters before leaving Cook County Court after his charges were dropped Tuesday, March 26, 2019, in Chicago. (AP Photo/Paul Beaty, File)

Jury selection, which begins on Monday, could also be a key part of the defense’s strategy. 

“Give me one juror who’s not convicting me regardless of the evidence. It’s a mistrial. Are they really going to try me again?” Zelin said. “All you need is one juror to say, ‘Listen, I need more information. They didn’t give me enough information to convict this guy. Therefore, the judge said, I must acquit.'”

If Smollett is ultimately convicted, Eiglarsh said that he could face prison time even if he doesn’t take the witness stand due to aggravating factors in the case. 

“If there’s ever a scenario where someone is given jail or prison time for doing something that is disorderly, which normally you wouldn’t face real jail time for if you’re a first offender, it would be a case like this,” Eiglarsh said. 

“The ripple effect of what he did here, by causing any future victim to be called into question and be treated like a suspect,” he continued. “He did so much here, that I think his conduct is so egregious that it warrants at least some jail time.”

Jussie Smollett’s attorney, Nenye Uche, did not respond to a request for comment on Sunday. 

The Associated Press contributed to this report. 

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