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Michael Kruse discusses whether Michael Rafferty should testify at his trial

Apr 30, 2012 - CBC

Michael Rafferty is on trial for the first degree murder of eight year old Victoria Stafford in April 2009. Criminal Lawyer Michael Kruse talks to CBC Radio below about whether he should take the stand in his trial.
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Here is the complete transcript for this CBC radio interview.
Interviewer: We'll likely find out tomorrow if Michael Rafferty will take the stand in his first degree murder trial for the killing of eight-year-old Tori Stafford of Woodstock. It is a decision not taken lightly. His defence team has many things to consider. Rafferty's intense note-taking during the final few days of the Crown's case lead many to speculate that he will take the stand. But lawyers know that's not always the best choice for defendants to make.

Michael Kruse is a criminal defence lawyer in London and joins us now with his thoughts on this. Good morning!
Michael Kruse: Good morning Wei.
Interviewer: How does Michael Rafferty's defence team decide whether to put him on the stand? Walk us through what they must consider before making that decision.
Michael Kruse: Well, first of all, the defence team has to ask themselves: How strong is the case against Mr Rafferty? And by calling him to the witness stand, does this increase the chances of winning? It's a real risk/reward analysis they have to go through. There's a caution and benefit to it. But ultimately, I have some rules of thumb that I think they should follow. First of all, in a jury trial, the general rule (in mine at least) is to call the witness. Empirical studies suggest that juries are much more apt to acquit and find a person not guilty than a judge alone trial. In terms of state of mind, if there's intent or knowledge or you're looking at alibi or self-defence, the general rule of thumb is also to call the witness. If they are deciding to call other defence evidence, by not calling him, it's going to highlight that evidence. Additionally, if he has a criminal record that's significant, they may not decide to call him. What type of witness does a person make? Is he a poor witness? Is he a good witness? Had they painted their theory of reasonable doubt through their own questioning, then they may not need to call them. But ultimately, they have to ask if this is a weak case or a strong case. But you have to bear in mind: with a jury trial, the jury can be swayed by sympathy, prejudices, things like this and emotion. But ultimately, they may have to call him because in a murder case with serious consequences, you don't want to second guess yourself. If he's properly prepared as a witness to withstand cross-examination, it may be in his best interest to call him, because you don't want to be haunted by a decision not to call the witness after years later.
Interviewer: What are the risks involved in actually putting him on the stand?
Michael Kruse: The ultimate risks are you're talking about a lay person who has never perhaps had this experience of testifying and they're going against very seriously talented prosecutors. Kevin Gowdey, for example, is a talented prosecutor, a very capable questioner. You're ultimately a person who could wind up convicting himself on the stand by answering questions poorly or not coming across well. You may not have a good demeanour, for example, or not sound good. But ultimately, the problem is this: In a courtroom, even the most truthful witness can come across very poorly in the hands of a seasoned prosecutor. The important thing is to have that witness prepared for all those questions, for different styles of questioning. That's the defence team's job. I'm sure if they've made the decision to call him, this is a very capable defence team and they'll have him very properly prepared.
Interviewer: In the last few days of the court proceedings, Rafferty was seen to be taking a lot of notes, writing almost furiously. Can you speculate what that might have been about?
Michael Kruse: I can only speculate this: Maybe they haven't made the decision and he's girding himself and preparing himself for that possibility. It may be more of a nervous note-taking type thing. The bottom line is the decision is often not made until the last minute, meaning their thinking goes into it throughout the course of the whole trial. But they may be preparing him and that may be his way of expressing nervousness or getting himself ready to testify in the event he's called to.
Interviewer: What if lawyers don't want their defendant to take the stand but the defendant wants to, insists on it? Do they have to allow him then?
Michael Kruse: Yes, they do have to allow him. Ultimately, in Canada, in Ontario, it's the decision of the client. In most cases – actually, all cases that I've been involved in – the client has followed my advice. But there's certainly out of those cases where the client either does want to testify or doesn't. There's a case called Regina Smith from the Ontario Court of Appeal, for example, that says ultimately, it's the client's decision.
Interviewer: How unusual is it for an accused killer to take the stand in their own defence?
Michael Kruse: It's not unusual at all. In many instances in a jury case (which is always the case pretty much in first degree murder cases), you're going to be taking the stand and it has to be a weak case not to take the stand, in my view, or there's negatives on the accused, like a serious criminal record that the jury might hear or a poor demeanour. But in cases that I've seen where there's direct testimony, and in this case, it appears to be a strong case on paper. You've got direct testimony – admittedly, perhaps, an incredible witness (not a credible witness): Ms McClintic. But there's links establishing exactly that the timelines which corroborates and confirms their the evedence so, I think it cries out for a credible denial. And by putting him on the stand, they're going to change the focus on him and it could change the whole lay of the trial and establish reasonable doubt.
Interviewer: And in your experience, how much do jurors want to hear an accused say they didn't do it?
Michael Kruse: They absolutely want to hear that. It's something that, at the end of the day, they're assessing the strengths and weaknesses of the case and they want to hear his side. Everyone knows there's two sides to every story. All Mr Rafferty has to do is convince one of those jurors there's reasonable doubt, for example, and that would result in a mistrial. If he can convince all twelve, he has a not guilty verdict. In any jury case, the jury absolutely wants to hear. That doesn't mean they want to quit if it's a weak case, but they're going to be in that jury room wondering why he didn't take the stand. The judge and Crown attorney are not allowed to comment on that in their closing addresses. But juries are sophisticated. They know the person can take the witness stand and they may be left there wondering why Mr Rafferty didn't take the witness stand.
Interviewer: Obviously, you haven't interviewed him. But given what you know about this case, your observations, if he were your client, would you put him on the stand?
Michael Kruse: Yes, I would. And commenting on that, there's a lot of defence lawyers who have different theories about these things. But from my practice over the years, both as a Crown attorney and defence counsel, I find that if you properly prepare your witness in a case like this to withstand cross-examination, it has worked over the years to the benefit of my clients to put them on the stand. Some lawyers take a different attack. They say, “Well, I just like to go on a reasonable doubt.” But based on the strength of the case that I've read about – and that's admittedly only from anecdotal stories from the courthouse, of course, and reading the newspaper carefully – it appears to be a strong case, both direct and circumstantial evidence. But at the end of the day, what was his intent? He's the one who can answer that on the stand, not just putting theories to them through cross-examination. But I think he needs to take the stand and give this jury something to think about.
Interviewer: Michael, thank you very much for sharing your insights on this decision making process.
Michael Kruse: You're very welcome. My pleasure Wei.
Interviewer: All right. Bye now.
Michael Kruse: Bye.
Interviewer: Michael Kruse is a criminal defence lawyer in London.