Do I Have to Testify at My Trial?

Our clients will often ask me, “Mike, do I have to testify at my criminal trial? What do I need to do if I need to testify?” That is a very loaded question. First of all, the right to remain silent in Canada includes the fact that you have no obligation to take the witness stand as an accused as a criminal trial. In other words, the Crown has the burden of proving a case beyond a reasonable doubt, and that is their burden with no obligation on you whatsoever. The only person who can make that decision for you, it is your decision but your lawyer will give you advise. Your lawyer is going to prepare you, a good lawyer will at least, to testify on every criminal case with rare exceptions. They are going to prepare you for hours so you will be ready. At the end of the Crown’s case, the lawyer will make an assessment. How did the Crown do with their case? Is it a strong case? Is it a weak case? Is it somewhere in between? Do I feel there is already reasonable doubt where I don’t need to call any evidence? It is a very delicate and difficult situation, and only a good lawyer can recognize if there is enough reasonable doubt. You don’t want to make the wrong decision, especially if you have been very well prepared. You are ready to go, you know you are going to do a good job. This is going to create even more reasonable doubt. That decision takes place at the end of the Crown’s case. In every case I do, I prepare my client to testify, well there are some exceptions, I will give you one. In some impaired driving trials, it I based just on a technical defense the police made where you don’t have to call your witness in some cases. In most impaired driving trials, I call my client but there are exceptions, and that’s one. Just a very technical mistake that the officer made, you would anticipate they would make that mistake in the witness stand, and you don’t call your client. You say to the judge, “Look, I am asking for directed verdict, there is not enough evidence or reasonable doubt.” So, that decision does not have to be made until the end of the case, but in many cases right from the outset, we know we have to call our client. In the vast majority of sexual assault cases, for example, or aggravated assault, or assault cases. You are talking about consent, you are talking about sexual assault cases. You’re going to cross examine to establish the defense, but your client’s the one who is going to bring it home by adding reasonable doubt if they are properly prepared witness. Have I ever not called my client in a sexual assault case? Yes. In the beginning of the trial, we anticipated we had to but the complainant did so poorly on the witness stand, her credibility was damaged so badly. This happened quite a few cases I’ve done where I made that. It’s a difficult decision to not call that witness. Now sometimes in some cases at the end of the Crown’s case, there is a motion you can bring called a direct verdict. If you think it’s right in the line or there is not enough evidence to even go to the trier of fact and it’s a low level test. Is there some evidence that a jury or judge properly instructed could convict? If you don’t think that test has been met, you can say to the judge, “Your Honour I am asking for direct verdict, a motion for non-suit.” You would give your submissions and the judge would give you the reasons of why or why not the motion should pass. Sometimes when it is in a grey area, I have known over the years a lot of judges will give subtle hints. “I don’t agree that the motion of direct verdict will be passed, I am not throwing away the case but do you really want to call your witness, Mr. Kruse?” They don’t want to sit on another day of testimony when they already know they are going to convict. Some judges will send you that signal, and a clever Defence counsel can pick up on those. So, the bottom line is no, you do not have to testify in a criminal case. In many cases you are going to want to testify, especially in sexual assault and violent crime cases. The real person in a position to make that decision for you, and it’s your decision not your lawyer, but your lawyer at the end of the case will know whether you need to testify or not.