Second-guessing an accused’s decision to testify or not after he’s convicted is a defence lawyer’s quickest route to sleepless nights and ulcers. A recent decision of the Nova Scotia Court of Appeal suggests how to limit the finger-pointing after a trial with an unhappy ending.
In R. v. Ross, defence counsel provided ineffective assistance by leaving the decision to testify in the hands of his client without giving him any advice about the decision. The Court of Appeal identified steps that an effective defence lawyer can take to help a client make an informed decision about giving evidence:
- Know the relevant law and explain it to the client – it may seem obvious that defence counsel needs to know the legal basis for the defence she is running at trial, but the client needs to know how his evidence figures in that defence so as to understand how his choice about testifying will affect his lawyer’s ability to make legal arguments on his behalf;
- Prepare with the client before he decides – the Court points out that it is impossible to assess how a client will perform as a witness until the lawyer does some witness preparation with him. A client who performs woefully at first blush may improve with advice about testifying in court and the practice of mock cross-examinations;
- Revisit the decision as the case progresses – an initial decision about whether to testify may change after the Crown closes its case. If the Crown’s evidence was better or worse than defence counsel expected, the significance of that change of circumstances should be explained to the client and linked to how it affects his decision to testify; and,
- Document the decision-making process – written instructions setting out the client’s decision and his understanding of the significance of the decision are critical. It is also important to prepare contemporaneous memos to file and correspondence with the client documenting the advice the lawyer gave and the basis for the client’s decision to testify or not.
Defence lawyers make great efforts to advise their clients to say nothing upon arrest precisely so that the decision about whether to tell a judge their side of the story remains under their control. Having preserved that control, we need to ensure that we provide our clients with the advice and information they need to make their decision with their eyes wide open. Protecting yourself in the process is a happy by-product.