Do I have to take the stand in my own trial?

By Last Updated: March 16, 2022

In Canada we have a constitutionally protected right to silence which guarantees that we will never be required to take the stand in our own trial. You are, however, free to testify in your own defence if you wish, and there certainly are situations where you will need to take the stand in order to advance a particular defence. For example, you may have to take the stand if your defence requires you to provide testimony about your mental state at the time of the offence.

However, if you do not need to take the stand you should avoid doing so. Taking the stand will open you up to cross examination by the Crown Prosecutor and will put you in a situation where you have to answer questions that can undermine your defence. Your lawyer will advise you as to whether it is prudent to take the stand in your case, and you should follow his or her recommendation

If you do choose to take the stand at your trial, you will have to be examined by your lawyer during a direct examination, and you will then be examined by the Crown Prosecutor during a cross examination.

In the direct examination, you will take the stand and your lawyer will ask you open ended questions designed to present your side of the story in a manner that will assist your defence. During cross examination, the Crown Prosecutor will be asking you closed ended questions designed to undermine your credibility and damage your defence. Because cross examination is often a very stressful experience that can potentially weaken your case, it may be best to avoid taking the stand where possible. If you do need to, or want to take the stand in your own trial, one of our lawyers will be able to use their strong trial advocacy skills to fully prepare you, and to ensure that you make the best possible presentation of your case.

Tips for Taking the Stand:

If you anticipate taking the stand at your trial, or even if you do not, consider the following tips on how to prepare for your day of trial.

  1. Listen to your lawyer. Your lawyer has experience and skills they have gained through extensive education and through real life experience running criminal trials. If they adivse you to do or avoid doing certain things, this advice is being given solely for the purpose of ensuring your success at trial. Listen to it!
  2. If you have not already done so, make a written statement about the events surrounding the alleged charge. Writing the statement will give you something to review prior to trial that will help you keep memories of the event fresh in your mind. The better you are able to remember the events as they occurred, the clearer and the more credible your responses will be.
  3. Stay calm. Taking the stand can be a very nerve wracking experience that may not only make you nervous, but that can make you feel angry when being cross-examined by the Crown Prosecutor. Often the questions that are being asked are designed to, and will make you feel enraged and can cause you to react poorly. If you respond in a hostile or overly defensive manner, your behaviour may have a negative impact on the way that the judge perceives you.
  4. Tell the truth. If you are taking the stand it is of utmost importance that you tell the truth while you are testifying, even if you think the answer could damage your defence. If you lie and you are caught, not only will you damage your credibility and your defence, but you can also be charged with perjury, another very serious criminal offence.

For specific information regarding your case, please select the location that’s closest to you.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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