If you are accused of a crime, the best advice may be not to testify

If you are accused of a crime, the best advice may be not to testify

If you are accused of a crime, the best advice may be not to testify

When preparing a client for a criminal trial I always stress that the burden of proof lies with the Crown attorney. To win a conviction, the Crown must prove beyond a reasonable doubt that the accused has committed a crime.

This fundamental legal principle is very important. It is also the reason why an accused does not have to testify at their trial. After all, they do not have to prove their innocence.

When a trial starts, the Crown presents its evidence and calls its witnesses. When that is done I consult with my client and discuss the merits of testifying. If I feel the Crown’s case is weak, I could advise them not to take the stand.

Giving testimony in court is always difficult. Few of us can remember every detail of events that happened a year or more ago. Those accused of a crime are already nervous and they may not respond in the best way, especially on cross-examination by the Crown attorney.

Taking the stand to tell their side of the story is an accused’s constitutional right but testifying comes with risk. If someone’s credibility is called into question, they could be found guilty, which can lead to a criminal record, jail time or both. There are consequences to testifying in your defence.

Conversely, Crown witnesses risk no repercussions for testifying. They might not be believed but they will not be going to jail, though they may be charged with perjury.

SCC weighs in

A recent Supreme Court of Canada (SCC) case illustrates how someone accused of a crime can be found not guilty, even though they did not testify.

As court documents state, Shawn Metzger was convicted of a home invasion in Alberta in June 2017. During a burglary, a resident was struck on the head with a baseball bat, stunning him as blood obscured his vision. The masked intruders forced him to open a safe and give them cash before they drove away in his truck.

When the truck was found about 11 hours later, DNA testing on a cigarette butt under the driver’s seat led the police to Metzger. The victim also testified that he may have heard Metzger’s last name spoken during the robbery, but his defence counsel argued that recollection was not reliable.

The SCC agreed, ruling, “that evidence was fraught with frailties. [The resident] was struck on the head with a baseball bat at the outset of the robbery and was fading in and out of consciousness. In his testimony, he actively questioned his own recollection of what he had heard.”

Metzger did not testify when the case went to trial. He was convicted of offences including breaking and entering to steal a firearm and two counts of robbery. He unsuccessfully challenged that outcome in the Alberta Court of Appeal, leading to the SCC setting aside his convictions.

DNA evidence alone does not establish guilt

As the Supreme Court judgment notes, “The DNA evidence, standing alone, would not be sufficient to establish guilt beyond a reasonable doubt … the DNA evidence at best permitted an inference that the appellant was in the vehicle at some point in time prior to its recovery by the police. There was no evidence indicating when and why the appellant may have been in the vehicle, which was unaccounted for during the 11 hours between the robbery and its recovery.”

After considering all the evidence, the court surmised that “no trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available.”

The nation’s highest court also addressed Metzger’s choice not to give testimony on his own behalf, stating, “In light of the evidentiary weaknesses of both the DNA evidence and [the complainant’s] recollection, I respectfully disagree with the view that this is an instance in which the appellant’s decision not to testify at trial can be raised against him.”

The judgment also references another SCC judgment, which notes: “The failure of the accused to testify does not undermine his argument that the verdict [he was appealing] was unreasonable.”

Guilt beyond a reasonable doubt

The Crown’s duty to prove guilt beyond a reasonable doubt is a high standard. It is not enough for the Crown to show that something probably happened. If they cannot meet that standard, the court must acquit.

One of the goals of defence counsel is to raise doubts in the mind of the court about the complaint’s reliability and credibility. Are they telling the truth and are their statements consistent?

For example, I defended a client who was charged with sexual assault. A sexual assault kit proved the alleged victim had my client’s DNA on her. The key question was whether he had obtained consent.

When he was questioned by police, he was asked, “Would there be any reason why your DNA would be found on the complainant?” He assumed that since he used a condom there would be no trace of his sperm. So instead of saying the sex was consensual or saying he didn’t want to answer, he said “No way.”

When the case went to trial I did not call him to testify. He, therefore, did not have to explain why his DNA was found on the complainant, so that contradiction was never entered as evidence.

During the Crown’s evidence, there were many issues with the credibility of the complainant. Her description of what happened had changed from when she initially spoke to police and the differences were significant. The judge determined that she was not a reliable witness as I was able to show there was reasonable doubt. My client was acquitted.

I had another case involving a male teacher accused of having sexual relations with a student. She said they not only had sex in his car but that he taught her to drive in the vehicle, which she described as having an automatic transmission. I did not call him to testify. Instead, I called his wife. She testified his vehicle had a manual transmission and that he never drove her car, which was an automatic.

I pointed out to the court that the student would have remembered what the transmission in the vehicle was if she in fact learned to drive his car. I was able to show there were reliability and credibility issues without calling my client to testify. He was acquitted.

Call me for guidance

Many people accused of a crime may feel they should address the court and give their explanation of what happened. That is not always the best strategy. I have defended clients in courtrooms in and around Ottawa for two decades and I can advise you on what your best defence will be. Call me for a free consultation, in French or English. 

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