Criminal Law

Decision on testifying at trial weighs heavily on appeal

By Peter Small, AdvocateDaily.com Contributor

One of the biggest strategic decisions a trial lawyer can make that will affect a possible future appeal is whether to advise their client to testify, says Toronto criminal lawyer Lindsay Daviau, who has handled numerous trials and appeals.

“It can’t be the focus, but it’s something lawyers miss,” says Daviau, who practises with Rosen & Company Barristers.

“It should be highlighted when you’re grappling with whether your client testifies.”

Clients are often surprised that it is almost impossible to get their testimony before an appeal court if they didn’t testify at trial, she tells AdvocateDaily.com.

“What often happens when preparing for an appeal is the defendant says, ‘Well, I didn’t testify. My lawyer and I talked about whether I should testify. I didn’t want to,’” Daviau says.

Now that their case is under appeal they want to tell their side of the story but can’t, she says. “There’s no mechanism to do that.”

So the appeal court has a one-sided record with no input from the client. “It can be a real detriment once you get to the appeal,” says Daviau.

An appeal lawyer might be able to admit their client’s testimony by alleging that the trial counsel provided ineffective assistance, but the bar for that is very high, she says.

However defendants should not be pressured into the witness box for the sake of a possible appeal, Daviau says.

“I just think it’s something that should go into the consideration,” she says.

The defendant’s testimony might be particularly important on appeal in a he-said-she-said case, Daviau says. For example, in a sex-assault trial with no corroborating evidence, the defendant’s side of the story might be crucial on appeal, Daviau says.

But the question of whether to testify is rarely black and white. The defendant may be able to easily explain aspects of the case on the stand, but there might be other reasons to remain silent, she says.

For instance, the defendant may have a lengthy criminal record that would be open to scrutiny if they were to testify, Daviau says. “Maybe you just think they’re not well-suited to give evidence.”

So sometimes you have to advise them to not take the stand. But, Daviau notes, "the final decision about whether to testify or not always rests with your client."

“It’s a real dilemma for the trial lawyer,” she says, adding the impact on a possible appeal should be one of a constellation of factors trial lawyers take into account.

“I always say to clients, ‘How would you feel if at the end of this you’re convicted and you didn’t get up there and say what happened? It’s now or never, and if you lose and this goes to an appeal, the court will not have the benefit of your version. Can you live with that?” Daviau says.

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