Before his arrest in December, Bankman-Fried ignored the most basic legal principle: say nothing, or risk incriminating yourself. Instead, the FTX founder embarked on a parade of media interviews, appeared on podcasts, tweeted, and started his own Substack. In the process, he handed prosecutors a pile of material to inform their case against him.
At trial, the defense will need to consider the risk that Bankman-Fried could make a similar mistake, by incriminating himself on the stand. The default advice for almost any criminal defendant is to plead the Fifth and decline to testify.
The defense strategy, legal experts say, is likely to be built around the idea that negligence, not a criminal intent to defraud, was the cause of the multi-billion-dollar hole. Testimony from Bankman-Fried isn’t necessarily required to make that argument—and may even undermine the approach. “I don’t know that I’d want to be on the stand having to make the case that I’m an idiot,” says Jason Allegrante, chief legal officer at crypto custody firm Fireblocks.