The calculation: When the accused testifies
I’m Katie Nicholson, one of the CBC reporters covering the trial.
With Carter Hart entering the witness box yesterday to testify, a well-worn legal strategy may have been at play.
McLeod’s lawyer, David Humphrey, made it clear he would not call evidence. We don’t yet know if the other accused former world junior hockey players will also testify, but they may not need to.
Toronto-based defence lawyer Leo Adler says it isn’t uncommon, in a case where there are co-accused, to just call one of them to testify, especially if defence teams are working collaboratively.
“Hopefully you all have more or less the same theory of the defence, and hopefully only one person, perhaps the most articulate … can testify literally on behalf of everyone else,” says Adler says, who isn’t involved in this trial but is speaking as an observer.
The other defence teams can then use that witness to add in questions of observations that help them confirm their overall defence.
That is essentially what we saw play out as Hart gave evidence that may be helpful to other players, notably testifying that Cal Foote was fully dressed when he did the splits over E.M. and she was laughing. This would be at odds with E.M.’s allegation that he did the splits naked over her face.
Adler says the decision to testify is ultimately up to the accused individuals, but their lawyers would have to ask:
“How is my client best served? How do I show that there is reasonable doubt? How do I show that the main Crown witness is lacking in credibility and reliability?”
Adler says because this is now a judge-alone trial (following the jury’s discharge a couple of weeks ago), it is also likely Hart may be the only person to testify. In fact, he says, it’s a common strategy.
“The judge is supposed to know the law and appreciate that you don’t need five people saying the same thing over and over in order to make the point.
“He can rejuvenate his hockey career if he’s acquitted,” she says. “But more importantly, if it goes badly and he’s convicted, he’ll almost certainly serve jail time” and his life will be impacted by a criminal record, she says.
“It’s probably the biggest moment of his life to date.”