[1] In his closing address (THE ACCUSED’S) counsel invited you to infer (THE ACCUSED’S) guilt from his/her failure to testify. This submission is wrong in law and you must ignore it. You cannot use (THE ACCUSED’S) silence at trial as evidence of his/her guilt [2] Every accused person has the right to remain silent at trial. A person charged with an offence does not have to testify and has no obligation to prove anything. The burden of proof rests on the Crown from beginning to end. [3] You cannot find (THE ACCUSED’S) guilty of an offence unless you are satisfied on the basis of all the evidence that his/her guilt has been proven beyond a reasonable doubt. In reaching your verdict, you must not use NOA1’s silent at trial as evidence of his/her guilt.

And notwithstanding the above, this is what a jury is likely thinking:

“If it was me, and I didn’t do it, I would be up there testifying.”

I suspect this line of thought might cross a judges’ mind from time to time as well. In addition to that, a judge knows that if a person testifies they can be cross-examined upon their criminal record if they have one – this may lead them to believe the accused has a record. The judge is obligated to dissociate these sorts of thoughts and reasoning, but as mentioned above, it is a human process.

Therefore, if your client is innocent, let them testify. So what if they are cross-examined. Every other witness was cross-examined and had to withstand your questions. If you want to persuade, and there is no overriding reason other than fear and laziness in preparation, your client should hit the box.

12) Crack cocaine, heroin, and crystal meth ruins lives.

If you ever want to know how awful of a drug crack, heroin, and crystal are, just go to any bail court and watch the lost souls that come before it. Hard drugs like these take everything. There is no will to live, only to get high. There is nothing to look forward to in life other than the next fix. Such a dependency will inevitably lead to repeated and lengthy jail stays, or an early death, and in many cases, both.

Time and time again, clients come before the Court because of drug addiction and the inability to control impulses once addicted. These drugs form horrible additions that manifest recurrently and painfully in the criminal justice system.

On topic, criminal justice does not fix this problem. If anything, it aggravates it by initialling punishment and futility. Put simply, people cannot be punished into health, hope, self-worth, or an alleviation of pain.

13) You must leave the turmoil of the battle in the arena.

What we do as defence lawyers is very real, very raw, and very draining on our psyche and the optimism we may have for the human race. We frequently see suffering, violence, deceit, addition, hopelessness, and abuse of powers. We see the worst part of human nature more often than most people see sunny skies.

It’s important, therefore, that you do not get caught up in our clients’ turmoil and assume it as your own. Our clients lead tumultuous lives, they do terrible things, they are convicted of things they did not do, they are sometimes beaten badly, they may have drug addictions, children in foster care, shocking childhoods that left them no chance, or perhaps they are downright psychopathic. Whatever it may be, as a professional you must learn to detach these human stories of tragedy with your own life.

I remember very early on in my career when I was still a summer student interviewing a client who described what was blatant racial profiling by police. Shocked, I ran to my principal to pass on the information of something I thought as a rare occurrence that would send shockwaves through the criminal justice system.

My seasoned principal looked up from the desk and said ever so calmly “Ok. Prepare the motion then and we will see what happens.” Not only did I learn from experiences like this that that these sorts of events are not rare occurrences, but it does not achieve anything by getting riled up and taking on the emotions as your own.

Like a surgeon in an operating room, we must be calm, objective, assess the pros and cons of our approach, and above all, remain professional. Once you cross the line of making these things personal to your life experience, then you not only grind down your should, but you also become a less effective advocate. Believing in a client’s innocence affects judgement in the same manner in believing in a client’s guilt. We are professionals who must look at the evidence, disengage from the emotions from what is or has happened, and do our role to assess, undermine, and present evidence.

In truth, this is often easier said than done.

14) Innocent people are convicted of offences they did not commit.

These are just those that are infamous. Every day injustices takes place that will never be publicized or recognized.

No one who is wrongfully convicted has ever thought it could happen to them but it does and that is something that will likely never change. We as defence lawyers can do a lot to ensure that these are minimized by never losing sight of that possibility that you client may be one of them.

15) Guilty people are acquitted of offences they did commit.

Conversely, people are acquitted of things that they did do. This happens for all sorts of reasons including weak evidence, uncooperative witnesses, poor investigation, accused who lie, the high standard of proof required of the Crown. As mentioned many times above, the criminal practice is a human process and with it come mistakes on both sides.

16) Many victories are won outside the Court.

Comedian Lenny Bruce once said “In the Halls of Justice the only justice is in the halls.”

Despite the satirical nature of this quote, there is a lot to be said for advocacy outside of the courtroom It may not be as sexy as cross-examining someone into tears but the results one can obtain outside the Court often overshadows what can be accomplished in the Courtroom. This is particularly so in the present day and age where the trend is towards resolution, efficiency, and preservation of Court resources. Not every case can be resolved, but many can and to the satisfaction of the client.

The biggest mistake I see young lawyers commit in this area is not strategizing the resolution process with as much seriousness as the trial itself. If lawyers put in even fifty percent of the effort in preparing reasons for withdrawing cases, they would be very surprised how often they obtain a shockingly good result.

Cases do get withdrawn, but it is not because you wear a nice suit. Charges get withdrawn because a lot of work, preparation, and strategy is done upfront by the lawyer and client with their guidance. As Sun Tzu once said: “The supreme art of war is to subdue the adversary without fighting.” I imagine he would also say that those victories come with hard work.

17) Cross-examinations are fun, but cases are won in chief.

There are so many great hollywood scenes where people break down and admit they are in fact the killer and not the accused on the stand, or that they ordered the Code Red, and so on. I have to admit, cross-examination is very fun and very exciting. I have even had many things to say about a good cross-examination in the past. However, even the best of cross-examinations does not win cases nearly to the degree that a good examination in chief does.

The easiest job in the world playing the role of critic; that is what you are doing when you cross-examine. Judges know this. Juries know this. What take real talent is preparing your client in such a manner that their version is polished, persuasive, and coherent. Generally speaking, clients are terrible at explaining to the Court what happen on the fly. They will riddle their testimony with unhelpful phrases like “Honestly, let me tell you what happened…” or “That’s when the cops came and I…” and so on.

Having a client testifying takes three traits that many lawyers have difficulty with: 1) confidence 2) humility, and 3) intense preparation.

A lawyer must look at their client and have the courage to think that they will do well. Often litigation is like a house of cards and we feel that at any moment the whole thing can come crumbling down.

Therefore, we feel that even the slightest soft breeze affecting our client’s credibility will shatter the case that we have toiled over. Which brings me to my next point on humility. Do not think that you can win the case because of your genius. I can’t tell you how many times I have heard lawyers tell me that their client “won’t do well on the stand” only to either lose the case, or be surprised when the client testifies. All too often our arrogance as lawyers thinking that we can single handedly save the day clouds the reality of the jury thinking that “unless I hear a good explanation, this guy is going down”.

So, once we get past one and two, it takes a whole lot of preparation to have a client properly testify. It includes cross-examining them before the Crown does, having a road map of the types of questions you will ask, and the theme of what is being presented and how it works into your defence. It is a lot of work. If a lawyer is simply going to tell their client in custody the morning of trial to testify and then ask “what happened?” then forget it, but if you want to win, then prepare, prepare, prepare.

18) Jail is an awful, unimaginably horrible place that very few people truly appreciate.

Very few people understand how awful jail is. Most of society is unsympathetic to this because they think a) it cannot happen to them, and b) they are all scumbag criminals in there.

Both premises are quite false. Jails are horrible places that house everyone from impaired drivers, to minor allegations of domestic violence, to possessors of guns, to traffickers of small amount of drugs, to alleged murdered, to people breaching their bail.

Even those inexperienced with the criminal justice system get to spend time with the most seasoned. Violence is not only prevalent, but expected. Hygiene is terrible; conditions intolerable. Yes I know, “Boo-F&*&-hoo.”

Well, until you have been to a jail and spoken to the people inside and understand what really happens, the type of people that are actually in there, and how horrible it is, you really should keep your hard line lack of sympathy to yourself. There is nothing easier in life to be unsympathetic to others when sitting in the comforts and safety of your home ignorant of what really happens inside jails.

19) Defence lawyers are hated by the general public.

People hate us, plain and simple. Maybe not our family and friends, but as a concept, we are loathed. We are the scum that defend scum. We are hired guns. We “get criminals off’. I have reached a point in my career where I couldn’t care less what people think about what I do. I know the importance of it and I know how little we would have as a society without us. I know that police officers, politicians, doctors, clergy, business people, and virtually anyone who would normally disparage us is quick to call us as soon as they, or their kids are charged.

I know that those people sit across my desk, like all my other clients, and smugly explain to me how a “mistake” was made and they are not “criminals” like most of my clients.

To which I often reply, “I am the only one that believes that right now”.

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Author: Sean Robichaud, Barrister & Solicitor.