One thing that a lot of people worry about and call to ask us when they are facing a criminal charge, is ‘do I need to testify in court?’ The idea of testifying can be very scary to people, they have conclusions about what testifying is going to be like based on watching media depictions of criminal trials on television and public hearings, like the recent Johnny Depp and Amber Heard trial.
However, it is not always the case that you need to testify in court. The reason for this is that in any criminal prosecution, the crown bares the burden of proving the case against you.
This means that the crown has to prove, beyond a reasonable doubt, that you committed the offence. Every criminal offence has essential elements that have to be proven by the crown, and the crown goes first.
This means that they have the obligation to put all of their evidence before the court before it becomes necessary for them to decide if they want to testify.
Cases where you may need to testify in court
There are some cases where you may have to testify, for example, if you are arguing that your rights have been violated by the police and evidence was obtained unlawfully, most of the time you bare the burden of proving that your charter rights were breached.
There are a few exceptions, but most of the time the burden is on you, but this still doesn’t mean that you necessarily will have to testify.
Typically, in a situation where there is a determination about whether or not your rights were breached, the police officer who arrested you, and performed a search or other officers involved in the case will testify first. They will also be cross-examined, to determine whether there was a breach of your rights.
This cross-examination may then form a basis that your rights were breached without the need for you to provide evidence about whether or not there was a violation of your rights.
Only if the evidence is admissible against you. and the prosecution has provided sufficient evidence on all of the elements of the offence, could it then become necessary for you to testify.
In such circumstances, you may be required to testify to say that you didn’t do it or to provide evidence of an alibi that you weren’t at the scene of the crime and where you were instead.
Or perhaps you may need to testify to provide evidence of what is known as an affirmative defence, for example, self-defence. In this case, you may need to testify about why you felt you were in danger and why you had to act in response to that danger.
The Burden of Proof on the crown
However, in the vast majority of criminal cases, accused people do not have to testify in court. Because of the way the system puts the burden on the crown to prove their case beyond a reasonable doubt, and to call their evidence first, many cases often conclude
without having to call a defence, because there is insufficient evidence on an element of the offence.
At the end of the day, lawyers are always cautious about putting their clients on the stand because this exposes them to cross-examination, to more stress and agony in the process and lawyers are always trying to minimize the difficulties their clients experience in coming to court.
It is not the case that you will be compelled to testify in court, but it may become necessary if the evidence is sufficient to lead to a conviction without your testimony.
A lawyer can help you to make the determination about whether testimony is necessary and to best protect you from the stress and anxiety of having to testify in a criminal case.