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Sam Bankman-Fried Will Testify in His Own Trial. It’s a Legal Hail Mary

Received wisdom is that defendants shouldn’t take the stand in fraud trials. FTX founder Sam Bankman-Fried’s choice to do so is a bold gamble.

Sam Bankman Fried

Photograph: Stephanie Keith/Getty Images

Sam Bankman-Fried will take the stand at his own trial, his legal counsel has confirmed. The founder of stricken crypto exchange FTX has endured three weeks of bruising testimony in federal court from ex-colleagues, peers, and other witnesses. But Bankman-Fried will now take the opportunity to relay his own version of events to the jury.

The US government has accused Bankman-Fried of masterminding a multibillion-dollar fraud, whereby funds belonging to FTX customers were swept into a sibling company, Alameda Research, and either used to back up risky crypto bets or spent on debt repayments, personal loans, political donations, and luxuries of various sorts. At trial, he is facing seven charges in connection with the alleged fraud.

In deciding whether to testify, the stakes for Bankman-Fried are high. “The upside,” says Daniel Richman, a professor at Columbia Law School and former federal prosecutor, “is that you really get to have an opportunity to persuasively give your side of the story.” But testifying will also expose Bankman-Fried to variables outside his control, including cross-examination by the prosecution.

The default advice to any criminal defendant, says Christopher LaVigne, a partner at law firm Withers, is not to take the stand. In a court setting, no matter how well prepared the testimony, it is “virtually impossible to predict what’s going to happen, particularly in cross-examination.” Bankman-Fried may be “caught flat-footed,” says LaVigne, by a piece of evidence that undermines his telling of events—and if the government can demonstrate he has lied on the stand, it can be used as ammunition in the final stages of the trial. In the event he is convicted, meanwhile, the judge would take into account any perjury in sentencing.

To an extent, however, Bankman-Fried was left with little choice but to defy conventional wisdom and take the stand. The weight of the evidence laid out by cooperating witnesses, each of whom spoke to their own guilt, means a Hail Mary approach is the only option the defense has left, says Daniel Silva, a former prosecutor and attorney at law firm Buchalter. “It doesn’t seem like he has any other cards to play. It’s high-risk, and possibly very minimal reward,” says Silva. “It seems like there’s really nothing else for him to do at this point than testify and try to explain it away.”

In direct examination, the defense is likely to ask Bankman-Fried to offer alternative explanations for the behaviors outlined in the testimony of his former colleagues, and perhaps address questions around his intentions and state of mind. “He’s going to have to present himself as the most misunderstood man in America,” says Richman.

On the morning of October 26, the prosecution will call its final witness, then rest its case. The defense will then call four witnesses of its own, one of them Bankman-Fried. But until he takes the stand, there is always the possibility of an about-turn. Despite having stated his intention to testify, says Rachel Maimin, partner at law firm Lowenstein Sandler, Bankman-Fried is still within his rights to withdraw, should he get cold feet. The decision to testify, says Maimin, can “turn on a dime.”

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