Laura Babcock murder trial: What happens if Dellen Millard testifies?

For weeks now, an exceptionally rare spectacle has been unfolding inside a Toronto courtroom.

Dellen Millard, charged with first-degree murder in the death of 23-year-old Toronto woman Laura Babcock, is representing himself — something that is almost unheard of in Canada on such severe charges.

He's been trying to do all the things a defence lawyer would normally do, like cross-examining witnesses, entering evidence and making legal arguments before Justice Michael Code in Ontario Superior Court.


But as the Crown's case against the 32-year-old Toronto man and his co-accused Mark Smich, 30, of Oakville, Ont., continues, a question looms.

What happens if Millard wants to testify?

Has the right to testify

It's his right as an accused person to sit in the witness box and give his version of events if he so chooses. Usually, that would happen through what's called "examination in chief," where a defence lawyer asks their client questions to allow them to give their version of an event.

An amicus is also sometimes appointed by a judge to assist a self-represented defendant, and that person could theoretically examine Millard — but that hasn't happened in this case so far.

This odd perfect storm has created an incredibly unique set of circumstances, said Blair Crew, review counsel at the University of Ottawa Community Legal Clinic.

"A ... situation where an accused has no lawyer, has chosen to represent himself and nobody has been appointed to assist is a very rare coming together of events that you would rarely see in first-degree murder trials," Crew told CBC News.

Millard likely to 'tell his story' if he's in the witness box

What would likely happen if Millard chose to testify, Crew said, is that the judge would allow him to sit in the witness box and just give his own testimony "more in a narrative fashion instead of the standard question and answer format that you would see if he did have counsel."

Toronto defence lawyer Ingrid Grant says she has encountered a situation like this once before in court, though not on something as severe as a first-degree murder charge.

"In that case, [the accused] said he wanted testify, he got up on the stand, he was sworn, and then he was invited to just give his evidence, to tell his story, to tell the jury whatever he wanted to tell them within the bounds of what's relevant," Grant said.


"I think what would happen [here] is Millard would get up on the stand and be sworn, and would just be invited to give his evidence in the form of a speech."

There isn't a lot of precedent in Canada for these types of situations, as most people charged with first-degree murder get a lawyer.

Bizarre American case

There is, however, one famous case out of the U.S. — that of convicted rapist and serial killer Rodney Alcala, known as "The Dating Game Killer," because of his appearance on the TV game show back in the 1970s.

Alcala acted as his own lawyer in a 2010 murder trial, and chose to testify. For hours on the stand, he acted both as lawyer and witness, asking himself questions in a deep voice in the third person, and then answering them, as if he was having a conversation with himself.

"That really did happen, in a real case … though I don't think that would actually happen here," Grant said.

What this unique situation in the Babcock case would likely also mean, Crew said, is an increased role for the judge in making sure any testimony coming from Millard is admissible and appropriate.

But from a legal perspective, does it make sense for Millard to choose to get up in the witness box and testify?

Risky strategy

"There's always a risk that an accused who acts as his own counsel and who chooses to take the stand is going to come across to the jury as being arrogant in thinking he can do this, or thinking this charge is just very minor and I, as an amateur, can be my own lawyer," Crew said.

"I don't think that that level of confidence or arrogance would necessarily play well in front of a jury."

The Babcock case resumes on Tuesday morning, when Millard will cross-examine forensic anthropologist Dr. Tracy Rogers about her testimony.

Rogers told the court on Friday afternoon that burning objects seen in photo taken of the inside an incinerator belonging to Millard look like human bones.

adam.carter@cbc.ca