In every criminal trial it is up to the prosecuting authority (prosecution) to “bring its case”. In doing so the aim of the prosecution is to satisfy the court beyond a reasonable doubt the guilt of the accused.
Some might believe in lofty ideals that the prosecution is to see justice done. It is quite a different experience for an accused is going through the process. An accused is not required to say anything, save for providing their name and address and date of birth at the commencement of an investigation.
Should the Accused Speak or Be Silent?
An accused can also remain silent throughout the trial. A trial commences with the prosecution calling its witnesses most often starting with the complainant. Once the prosecution closes its case it is then up to the defence to call its witnesses.
This is the time when the accused is given the opportunity to let the court know his or her version of what happened. Alternatively, an accused may exercise his or her right to maintain silence and elect not give evidence. In this way the accused is not subject to cross examination.
The election to give evidence or not give evidence is entirely a matter for the accused. It is not defence counsel’s role to make that decision. Defence counsel’s role is to provide the accused with the information both for and against electing to give evidence thus allowing the accused to make an informed decision.
This process is not one that takes place last minute. This is something that counsel should discuss with the accused well ahead of the trial carefully explaining the pros and cons of giving evidence.
During the Criminal Trial
Best practice suggests that counsel should obtain written and signed instructions ahead of the trial setting out that the accused understands said pros and cons. Of course, any trial is a fluid construct where facts and situations change and questions of law arise during the course of a trial. Any such occurrences may give an accused cause to consider their earlier election.
Again, Counsel’s role is to carefully and clearly explain to the accused any and all factors that might necessitate the accused giving evidence or not giving evidence.
In the recent trial of Minneapolis police officer Derek Chauvin convicted of murdering Raymond Floyd, Chauvin’s legal representative went painstakingly through the process of ensuring that Derek Chauvin understood his right to give evidence or not give evidence.
The system at least in the Minnesota Supreme Court is for counsel to go through the vetting process takes place in open court before the presiding.
The exchange can be seen at this YouTube video here. This is not the practice in WA courts but very similar steps are taken by trial counsel with the accused in private.
Criminal Trial Questions & Evidences Discussion
Anyone facing a criminal trial should discuss the question of giving evidence with their trial counsel well before the time that they are called for their election.