It stands to reason that we usually need to hear both sides of a story before reaching a definitive conclusion about guilt, but in the less than ideal world of criminal justice, many accused, like Carlington McKenzie, are sent to jail without the jury ever hearing their side of the story.
In fact, the accused has a consitutional right not to testify. No one can compel an accused person to take the stand. The prosecutor is not allowed to mention the accused's failure to testify, and the jury is not to draw any adverse inference from the accused's resounding silence.
Choosing to testify is a personal decision to be made by the accused, presumably on the advice of counsel.
The Anglo-American-Canadian systems of justice choose to shield the accused from being compelled to testify like any other witness in order to prevent a prosecution from becoming a persecution.
A prosecution requires the state to prove its allegations beyond a reasonable doubt, whereas a persecution will proceed on frail and dubious evidence in the hope of discovering further incriminating evidence by compelling the accused to provide an explanation.
But in practice, we have the most ass-backward system you can imagine when it comes to an accused's right to remain silent.
Prior to trial, police officers cajole, intimidate and manipulate accused people to provide a statement. A great deal of time and effort is put into obtaining an admission of guilt.
Shuffled into some dingy interview room deep in the bowels of a police station, without counsel present and without the oversight of a neutral judge, the accused faces police playing good cop/bad cop and a whole host of other nasty tricks. I can't think of a worse environment for obtaining reliable information.
Ironically, once we reach the trial stage, and the accused is presumably in a safe setting with the support of counsel, we give him or her the option of sitting there silently. Now it's safe to talk, and yet the accused still has the right to refuse to do so. And we somehow expect a jury to be able to make a finding, beyond a reasonable doubt, about the accused's mental state. How about reasonable doubt existing just from the fact that we haven't heard the accused's story?
That's not the way it works. In fact, it's been demonstrated that juries are much more likely to convict an accused who exercises the right of silence.
Silence may be a right, but it is not a strength. It is usually interpreted by the jury as a sign of having something to hide.
Carlington McKenzie sought an appeal of his conviction for a 2003 home invasion in Toronto by claiming that his lawyer made a grave mistake by not letting him take the stand at trial.
His trial lawyer gave evidence on appeal that the decision not to testify was an informed decision made for strategic reasons with the consent of the client. Other members of the lawyer's law firm testified that he was negligent and did not properly consider the interests and wishes of his client. Last week, the Court of Appeal ruled that McKenzie's trial was not subverted by "ineffective assistance of counsel" and the conviction was upheld.
Lawyers will say the the right not to incriminate oneself is critical. If accused people are compelled to testify, we may end up with a system where the articulate accused is acquitted and the stuttering accused is convicted.
Do we have so little confidence in our judges and juries that we are willing to skew the entire process out of fear that judges and juries will be overly impressed by the slick talker and inclined to convict an accused on the strength of a poor performance in the box?
The way an accused person delivers testimony is part and parcel of the process of evaluation. It provides some insight into character, and we are required every day to make decisions about whether the smooth talker is lying or not.
Unfortunately, the decision as to whether to participate in your own trial does not revolve solely around considerations of stage presence and smile. Although the prosecutor is not allowed to raise evidence of the accused's bad character, the law does allow the introduction of past criminal convictions if the accused takes the stand.
Our adversarial legal culture can be difficult for any witness, especially those accused whom prosecutors hope to trick and trap with a clever cross-examination.
Given the choice, many accused are advised to keep quiet. Some trials can be won by casting reasonable doubt on the Crown's case.
But in most cases, their silence ends up putting them in jail.