Should Henri van Breda testify?

If Oscar Pistorius was the epitome of courtroom theatrics‚ the poker-faced Henri van Breda has been the opposite.

Van Breda has sat quietly in the dock at the High Court in Cape Town‚ where he is on trial for the murder with an axe of his parents and brother‚ and the attempted murder of his sister at their home in Stellenbosch in 2015.

Apart from the odd smile when the defence scores a point‚ or the quiet tears when the autopsies of his family members were under scrutiny‚ he has shown little emotion.

But as the defence prepares to open its case‚ the question being considered by his counsel is this: will it work for or against him if he testifies?

Public opinion and common sense suggest that failure to testify is a sign of guilt. According to the experts‚ however‚ it is more complicated than that.

Professor Kelly Phelps‚ a senior lecturer at the University of Cape Town who was also the CNN analyst on the Pistorius trial‚ said it was “very common” for defendants to be dissuaded by their lawyers from testifying.

“A skilled cross-examiner can very easily unnerve an accused person and court is an intimidating environment. It is a very vulnerable place to be … and often the emotion of the occasion or personality traits will lead to a negative performance irrespective of guilt or innocence‚” she said.

The Pistorius trial was characterised by the Paralympic athlete sobbing‚ retching‚ sweating and demonstrating how walking on stumps made him vulnerable. By contrast‚ Van Breda has been a closed book.

Are these simply two different personae‚ or is there method in the madness? According to one expert‚ the odds are stacked against the defendant either way.

WATCH | The state’s side of the story: 10 points from the case against Henri van Breda

US defence attorney Jack Martin wrote in his research that “if the client becomes emotional”‚ it is viewed by the public as “crocodile tears”. Likewise‚ “if they show no emotion‚ they can be seen as cold and relentless”.

First and foremost‚ one must remember “they have a constitutional right not to testify”‚ explains Professor Pamela Schwikkard‚ also at the University of Cape Town. But apart from this‚ they may have a “general distrust for the criminal justice system” or they may think “it will make no difference”.

Dina Rodrigues‚ convicted of the assassination of six-month-old Baby Jordan‚ later said she was willing to testify but her lawyers convinced her it was not necessary as the state would be unlikely to prove her guilt beyond reasonable doubt.

According to international attorney Scott Greenfield‚ who runs the Simple Justice blog‚ “even defendants with clean backgrounds‚ a decent education and of reasonable intelligence tend to testify poorly. Giving testimony is entirely different from engaging in normal conversation.”

In Van Breda’s case‚ defence counsel Piet Botha first said he would testify but later changed his position.

On Wednesday‚ Judge Siraj Desai — who called it “an unusual situation” — will comment on his interpretation of the law regarding a defendant deciding to take the stand after other witnesses‚ and what “consequences” this might have in the eyes of the law.