The right to remain silent. Should you exercise that right?

Conrad Black, the man convicted of fraud, Robert William Pickton, the man convicted of serial killings and Steven Truscott, who at the age of 14, was convicted of murdering a 14-year old girl many years ago have one thing in common They each exercised their right not to testify in their defence at their criminal trials.

This right of an accused not to testify is enshrined in our criminal law. Except in limited situations, no mention may be made to the jury of the accused's failure to testify and it may not be used to bolster the prosecution's case. However, that is a moot point because anyone who has heard all of the prosecutor’s case will wonder why the accused hasn’t got on the stand and said that he or she is innocent and then explain that innocence to the court.

With reference to Black and Pickton, the evidence against them was so strong, it is highly unlikely that either of them going on the stand would assist them in convincing their juries that they were innocent. However, in Truscott’s case, that is a different story. The evidence was purely circumstantial and if Truscott had testified on his own behalf, it is possible that he would have been acquitted. He was sentenced to death and naturally, the sentence was overturned and he was sentenced to life in prison. He was released ten years later and in 2007, the appeal court ruled that he is entitled to have the matter heard again on January 21, 2008.

Many years ago, I was charged with assault with a weapon (flashlight) and impersonating a peace officer. I took the stand and denied assaulting the man. I said I was defending myself after he grabbed me by the neck and tried to pull me back to his apartment after I served his wife with a court summons. I said that all process servers are peace officers according to the Canadian criminal code and the judge, after looking in the code for the pertinent section, agreed with me. I was acquitted of both charges.

Surely when accused persons are on trial, both the judges and the juries are waiting with bated breath for the accused to go on the stand and give their evidence. It is a human trait to suspect a person of a wrongdoing if he or she makes no effort to explain his or her innocence on the stand where they can be subjected to cross examination.

Admittedly, a great many accused persons go on the stand and are still convicted and often by their own words. But what does an innocent person stand to lose if he goes on the stand and gives his story to the judge or jury? If the accused person is represented by a good lawyer, the prosecutor will not trip the accused person up at all.

What motivates any accused person to refuse to take the witness stand? I can understand not putting Steven Truscott on the stand. He was just 14. He would have been no match for the experienced prosecutor and placing him on the stand would have been a risky move. Still, we'll never know if testifying would have created a reasonable doubt sufficient to avoid the jury's original guilty finding.

But why on earth didn't Black testify? Surely he would have been more than a worthy adversary for any of the prosecutors. Surely he could have turned on the charm and shown off his photographic memory. Was there a fear he would have also turned the jury off with his loquacious vocabulary? Surely he wasn’t so stupid to actually believe that the evidence against him was so weak that he didn’t have to proclaim his innocence on the stand? Of course, he had no defence whatsoever after being seen carting boxes of evidence out of his former office. He was convicted for that crime.
Maybe his jury consultants convinced him that testifying would be a bad move. Perhaps he had a shadow jury watching the trial and they convinced him he shouldn't testify. Whatever the reason, the refusal to testify has to be seen as a major blunder.

In every criminal trial there comes a time when the accused has to decide whether or not to take the stand. This is often the biggest tactical issue for the defence, knowing that any reasonably inquisitive juror will want to hear from the accused. If the accused didn't do it, he should say so.

A smart lawyer may concluded that the evidence against his client is so weak, it’s not necessary placing his client on the stand and risk his client saying something that will confirm his guilt. Perhaps the defence lawyer is trying to shield his client from being questioned about his prior criminal record. The question of the criminal record would only come up if the accused stupidly claims he has never committed a crime. When that happens, it opens the door for the prosecutor to raise the issue of his criminal record.

Perhaps the accused is perceived as being an unattractive witness. I'm not referring to physical appearance, but rather to the accused's entire make-up, including the manner in which he answers questions. A smart ass may portray the accused as a person who ‘probably’ committed the crime. An accused who is inarticulate or who answers questions with hostility does him no good.

Finally, there are ethical constraints on defence lawyers. A lawyer may not call a witness if he has good reason to believe the witness will perjure himself. So if the lawyer knows his client did it, he can't very well call him as a witness and ask the ultimate question: "Did you do it"? That's why defence lawyers often don't want to know whether their clients "did it".

Ultimately, the decision is that of the client, but the defence lawyer has a duty to guide the client to a reasoned decision. However, as many convicted people know, if you exercise your right not to testify, you are often exercising your right to free room and board at the expense of the taxpayers.

My personal view is that if an accused is truly innocent, he or she should take the stand and say so.