Sexual Assault: Should I Testify?

As a defence lawyer, during the trial, you cross examine witnesses, you cross examine the victim, the complainant, the police officers, and each day as the trial progresses, you’re asking yourself, have I created a reasonable doubt? Is it compelling at this point? Or is the complainant sounding very good?

Are they credible and reliable? So at the end of those four days or five days of testimony of evidence from the crown when they close your case, you have a picture in your mind whether you need to call your client or not. Now in most sexual assault cases that I do, and I would say most lawyers do they tend to call their client because the way our firm operates, we will prepare that client to testify for hours in a sexual assault trial. I mean, first of all, this is often a two-year process leading up to trial. I have met with that client literally dozens of times. I have prepared their testimony. We’ve got a statement from them. It’s been poured over. I’ve done mock cross examinations. I know I know. They’re going to be a good witness because we keep doing mock cross examinations until they become a good witness. There’s no other way to win a trial. See, don’t confuse court with who’s telling the truth or who’s lying. It’s about who comes across the best. A lying complaint, can come across very well. A truthful complainant can come across as a liar because they’re nervous anxiety or screwed up. It’s a weird situation but never confused what goes on of the court about who’s telling the truth who’s lying. I have had clients who I thought were truthful who just had anxiety and can’t testify. I’ve seen enough, you know, so it’s a very delicate situation. So, at the end of the crowns case, then should my client testify. I will take a break. I’ll ask the judge for a break. I’ll meet with my client. I’ll review the evidence with him. I’ll say look, I think we have a reasonable doubt here. But there’s too risky for you not to testify. I know, you’re going to do well, you’re prepared. Let’s get there. That’s my advice. It’s their decision. They usually follow it. And I’ve never regretted that decision when we when we call that not one case I’ve ever done because, you know, the only time I will not call a properly prepared client is when I’m absolutely convinced that there’s enough reasonable doubt, we win the case. But that’s a decision. That’s an awful decision to make because if you make the wrong decision, you’ve lost you don’t get a chance to call your client and you’ll kick yourself. So I’ve always err on the side of caution unless it’s compelling and I’ve had cases that are compelling. I know. I mean, I know the judge is totally tuned out. By the end of five days, you could tell they’re literally asking you really need to call this witness to waste another two days in court. Mr. Kruse. Well, you know the answer to that so it’s the bottom line is Every case is different, but I will say for most of the sexual assault cases, I’ve done my career which is dozens, I don’t even know how many I’ve done. It could be 100. I tend to always call my client except in very rare circumstances very, very compelling, reasonable doubt. We’re at no doubt that the judge was going to acquit.