We have all recently followed with fascination the sexual assault trial of former CBC radio host Jian Ghomeshi, and the stunning revelations during the murder trial of Steven Avery on the Netflix documentary “Making A Murderer”.
In each of those cases, the defendants on trial, in consultation with their very capable lawyers, had to make a critical decision: to testify or not to testify.
Whether to take the witness stand is perhaps the toughest decision a defendant in a criminal case (and his lawyer) have to make.
The accused is not required to testify. He has the constitutional right to remain silent. The prosecution must prove the case against him. The defendant does not have to prove anything. The prosecution cannot force him to testify: the decision is his alone, and he does not have to make it until the prosecution closes its case.
Should the accused defendant testify? If he steps into the witness box, he is fair game to be challenged through vigorous cross-examination by the prosecution. If the judge or jury deciding the case finds him to be dishonest, he could end up being convicted by his own words. On the other hand, if he sits back while his lawyer attacks the government’s case, and does not step up to vouch for his own innocence, will that not make him look guilty?
Weighing the pros and cons of testifying is one of the most challenging and difficult aspects of criminal defence. This is particularly so in a credibility case, where the only two people present during the alleged offence were the complainant, who has already been vigorously cross-examined, and the defendant, who does not have to. For a defendant to attack the complainant’s version as being false, yet to fail to provide a different version of events, can often leave a gaping hole in the case, or leave the impression that the defendant is hiding something.
When a defendant chooses not to testify, the judge or jury deciding the case are not permitted to use his silence as evidence that he is guilty. But that is easier said than done. It goes against the natural human desire to want answers to the big questions. A defendant who raises questions by attacking the prosecution’s case, then sits back and refuses to provide answers, and tells the jury not to hold that against him, is taking a serious risk that a legal instruction will not trump human nature when it comes to deciding guilt or innocence.
There are many reasons why a defendant in a criminal case might choose not to testify. By stepping into the witness box, he is exposing himself to cross-examination by a prosecutor who is far more experienced than the defendant is. The prosecutor will be quicker on his feet, and will use her questions, and the accused’s answers, to make him look guilty. She can make him look guilty by asking awkward or uncomfortable questions, by confronting him with lies or inconsistencies. Even truthful testimony by a defendant can be made to look suspicious or incomplete or inaccurate in the hands of a skillful prosecutor.
A defendant who lacks intelligence, is inarticulate, or who gets easily flustered, can be made to look like he is evasive, deceptive, or untruthful. An emotional witness can become angry when confronted, or break down in the box. Such displays of emotion can be used against him to maximum effect, especially if the prosecutor is not seen to be bullying or unreasonable in her questioning or her tactics.
In some cases, the defendant has a criminal record, which is so damning that its disclosure to the jury would be worse than the risk of not testifying. Sometimes a defendant cannot testify because what he knows or what he will be required to admit will make him look more guilty than remaining silent. Occasionally, where the defence has severely undermined the government’s case, and has the prosecutor on the ropes, calling the defendant to testify could distract from the prosecution’s weaknesses, focus unwanted attention on the defendant, and cause the defence to lose momentum.
There are many pros and cons that need to be weighed before the final decision is made. And if the defendant ends up being convicted, it is a virtual certainty that the decision about whether to testify or not will be one of the most heavily second-guessed decisions of the case.
So why did Steven Avery and Jian Ghomeshi not testify?
In “Making a Murderer”, it came as a shock to most people that Steven Avery did not take the witness stand to proclaim his innocence, to assert that he was being framed for the murder of Teresa Halbach, and to challenge the smarmy prosecutor Ken Kratz to take his best shot. The filmmakers downplayed this major event, and the lawyers aren’t talking. Was it because Avery was not very articulate? Was it because the defence did not want the jury to lose focus on the corruption and motive of the police to frame him, which the defence had so effectively exposed? Or was it because he would be forced to reveal uncomfortable, embarrassing, or inconvenient truths about his contact with Teresa Halbach before her death? We will never know the answer. But because Avery was convicted, the choice to keep him off the stand will be forever questioned and second-guessed.
In the case of Jian Ghomeshi, the answer might be easier to guess. Ghomeshi’s lawyer Marie Henein very effectively exposed inconsistencies, untruths and evidence of possible collusion among the witnesses. In doing so, she skillfully avoided having to tackle the allegations of abuse head on, and made it easier to choose not to expose her client to cross-examination.
Ghomeshi, in his last Facebook post before being charged, admitted to a preference for rough sex. Had he testified, that revelation might have been used against him, and would certainly have distracted from all of the gains that his lawyer had made against the Crown’s case. By putting Ghomeshi in the witness box, Henein might have been forced to sit back and watch, helplessly, as her defence, and her client, came undone in the maelstrom of publicity.
There is one certainty, however: if, as with Steven Avery, Ghomeshi is found guilty, the armchair quarterbacking, second-guessing and criticism of their decision not to testify will rage on long after the courtroom doors swing closed.