The prosecution in the trial of Michael Rafferty has closed its case. The defence will indicate on Tuesday if a defence will be called and if Rafferty will testify. Steven Skurka, CTV's legal analyst, reviews a number of critical issues related to the pivotal decision of calling the client to testify.
Q. Whose decision is to testify, the client's or the lawyer's?
A. The critical choice rests with the client. However, it is incumbent on the lawyer to carefully review the pros and cons of the client taking the witness stand. The client may be unaware, for example, that if she chooses to testify, the prosecution may cross-examine her on her criminal record. After the decision is made, the lawyer will take written instructions from the client. It will not be open for the defendant to testify on an appeal if the trial is lost.
Q. When is the choice made?
A. Generally, at the conclusion of the Crown's case when an informed decision about the strength of the prosecution's case can be assessed. Clearly, that is what has occurred at the Rafferty trial. However, there are cases, for example, such as an assertion of self-defence or consent where it is clear from the outset of the trial that the defendant will testify.
Q. What are the factors that will be considered in the decision?
A. Every case will be considered on its own merits. What type of witness will the defendant present? Can the client withstand a withering cross-examination? Is the testimony from the defendant necessary to win the case? Is the client insistent on taking the witness stand? Is there a piece of damaging evidence such as DNA that can be explained by the defendant? Is the case a credibility contest between the Crown's key witness and the defendant?
Q. Is the prosecution confined to ask questions on the areas raised in the examination-in-chief of the defendant?
A. The prosecution can question the defendant at large on any area of relevant and admissible evidence.
Q. Can the jury take into account the failure of the accused to testify?
A. The simple answer is that no adverse inference can be drawn by the jury.
Q. But isn't it human nature for jurors to expect someone charged with a crime to take the witness stand and protest their innocence?
A. Our system of justice operates on the fundamental principle that the prosecution must prove its case against any defendant beyond a reasonable doubt. The defendant is presumed innocent unless this burden of proof is met. This constitutionally protected principle will be instilled with the jury prior to its deliberations.
Listen to Steven's new radio show, Closing Argument, every Sunday afternoon at 4:00ET on NewsTalk 1010. You can also follow him on Twitter at @
