Credibility Flashcards
What does oath helping mean
● Parties not allowed to lead evidence of credibility → oath helping.
○ Presumed credible
What is the collateral facts rule?
How to decide if a collateral fact?
○ Wigmore test: does the line of questioning have a purpose independent of the mere fact of contradicting the witness?
○ The Phipson Test: does the line of questioning relate directly to a substantive issue in the case? (not subject to CFR) OR does the line of questioning relate only to credibility/secondary materiality? (subject to CFR). → favoured approach of canadian courts.
Effects of CFR
○ If a witness answers a question on a collateral matter during C.E. then examining party is stuck with the answer and cannot press further
○ When witness gives answer on collateral matter, other party cant call evidence to contradict the answer
○ Policy: time consuming, distraction from main issue,
What are the exceptions to the collateral facts rule / what is it OK to cross examine on even if collateral fact?
- Testimonial Factors (speaks to credibility thus collateral but what they actually saw is material)
2.Bias - Interest (in outcome)
■ Note that crown cant press the argument that the accused has a motive to lie in order to avoid conviction, nor can trial judge give a direction to jury of that effect. Violates presumption of innocence. - Corruption (gov or public officials)
- Capacity to testify
■ Marquard test factors are fair game - Previous convictions (CEA s12)
■ Witness may be questioned if have been convicted of any offense, excluding contravention act offence, but including where conviction entered after trial on an indictment.
■ Corbett (for accused only)→ despite CEA s12, a trial judge has discretion to prohibit questioning of accused on prior crim convictions if necessary to protect right to fair trial. Factors considered are:
● Nature of the offence and whether it is especially material to honesty/credibility (ex perjury, obstruction)
● Similarity of offences (similarity encourages prejudice)
● Temporal proximity (dont allow if super long ago)
● Fairness (has accused attacked credibility of crown witness, if so, allow C.E. for fairness) - Reputation as to trustworthiness/veracity (in community)
■ Ask:
● Do you know the reputation of the witness as to truth and veracity in the community?
● Is that reputation good or bad?
● *from that reputation, would you believe the witness on oath? (not used anywhere but ontario)
■ Danger: using this allows opportunity for contrary evidence
■ Judge should instruct jury not to auto defer, difference if under oath, character witnesses havent heard all evidence. - Expert evidence on witness reliability (can also C.E. this expert evidence even though speaks to collateral matter)
■ Only where beyond knowledge of trier of fact. Cant testify to actual credibility. Cautious approach used by courts.
Describe Corbett / s12 of CEA
Previous convictions (CEA s12)
■ Witness may be questioned if have been convicted of any offense, excluding contravention act offence, but including where conviction entered after trial on an indictment.
■ Corbett (for accused only)→ despite CEA s12, a trial judge has discretion to prohibit questioning of accused on prior crim convictions if necessary to protect right to fair trial. Factors considered are:
● Nature of the offence and whether it is especially material to honesty/credibility (ex perjury, obstruction)
● Similarity of offences (similarity encourages prejudice)
● Temporal proximity (dont allow if super long ago)
● Fairness (has accused attacked credibility of crown witness, if so, allow C.E. for fairness)
Actual CEA s12 words:
Examination as to previous convictions
12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
What questions may be asked about reputation in community?
■ Ask:
● Do you know the reputation of the witness as to truth and veracity in the community?
● Is that reputation good or bad?
● *from that reputation, would you believe the witness on oath? (not used anywhere but ontario)
■ Danger: using this allows opportunity for contrary evidence
■ Judge should instruct jury not to auto defer, difference if under oath, character witnesses havent heard all evidence.
What are the factors in assessing witness credibility?
● Character / Reputation
● Demeanor (problem: wont always account for cultural differences - limited value- CL assumes ability to see witness is important)
○ Confidence
○ Eye Contact
○ Firm Voice
○ R v white - intelligence, power to observe, integrity, capacity to remember, accuracy, sincerity, bias, evasiveness etc
● Detail (more is better)
● Matching up with other witness testimony
● Corroboration (match to other evidence - not always needed in crim)
● Impeachment/Consistency
○ Prior inconsistent statements (only used for credibility not truth unless adopted by witness or a hearsay exptn)
○ Bias/Corruption
○ Bad reputation/character (s12 CEA, Corbett, reputation for trustworthiness, capacity?)
* Should also consider testimonial factors alongside credibility
* credibility should be assessed in overall context of evidence as well as in light of observations of witness themselves. Consider the harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable in those conditions/place
How to evaluate credibility of child witness?
● Relaxed standard (not lower)
○ Exact time/place might not be able to recount
○ Lessened standards of oath taking and corroboration
○ Common sense approach - appropriate to mental development, understanding, ability to communicate (no hard/fast rules)
○ If adult gives evidence of something that happened as kid, credibility is tested as adult but presence of inconsistencies should be considered in age context.
Rule against oath helping re: prior consistent statements
A party cannot call prior consistent statements of a witness into evidence
● Considered “Oath helping” → not allowed because witness assumed credible
○ Reliability/ value is suspect
○ Encourages self serving practices in anticipation of trials
○ It is hearsay if offered for truth. If not for truth, little probative value.
Exceptions to the rule against calling prior consistent statements into evidence
○ To meet allegation of recent fabrication
○ Prior Consistent Admissible Hearsay
○ Narrative
○ Recent Complaint in Sexual Offences
Also in text:
○ When used for identification of a person or accused (for reliability)
○ Expert evidence on behaviour relevant to credibility beyond understanding of trier of fact (not of actual credibility)
○ Reputation for Veracity/truthfulness in community - but opens door for evidence on bad rep
Why allow prior consistent statements to meet allegation of recent fabrication ? What is required?
■ Shows consistency before alleged fabrication, rebuts recent fabrication (unless immediate motive to lie)
■ Cant be used for proof of truth of contents (stirling)
■ Recent fabrication needs to be more than contradiction of evidence, but can include allegation of influence by outside sources, and can be implied allegation
Why allow prior consistent admissible hearsay and what is required?
■ Follows rules surrounding hearsay exceptions / principled hearsay approach
■ Instruct jury to use only for proof of truth of contents not whether it enhances credibility
■ Ex. spontaneous statements / Res gestae (R v Edgar - but note must take stand and it will be cross examined in order to address concerns about fabrication)
What is the doctrine of recent possession? Why does it allow prior consistent statements?
■ Admissible because should be allowed to explain - part of res gestae
■ Prereqs:
● D was in possession of stolen goods
● Goods were in fact stolen
● Theft was recent
■ If met, inquiry is whether D offered an explanation for the possession
■ If trier of fact believes reasonably true, then there is a doubt and must acquit. If no explanation or not believed, then trier of fact may infer D knew goods were stolen or D participated in the offence
○ Narrative
What is the narrative exception to rule against prior consistent statements / oath helping
■ If no impact on unfolding of events, should not include
■ Only include as much detail as necessary to assist the narrative (only what is needed for narrative to make sense)
■ Not for proof of contents, just for context of narrative or truthfulness of witness→ trial judge to explain to jury → Doubtful in practice that anyone could distinguish truthfulness of witness from truth of contents.
■ Common in contract disputes
What is the recent complainant in sexual offences exception to the rule against prior consistent statements
■ Initially they were allowed because CC used to say could consider absence of recent complaint in deciding whether to believe complainant
■ Since repeal, exception remains. Often used where:
● Defence C.E.s complainant and alleges absence of recent complaint. Crown may then re-examine complainant on that issue
● To defeat an allegation of recent fabrication
● To fill out the narrative for events leading up to sexual assault complaint
● Where it falls within a hearsay exception (eg res gestae)
How might you rehab your witness’ credibility?
● Redirect your own witness after C.E. → limited. Has to be an exception.
● Calling evidence as to good character / reputation in the community for trustworthiness (R v Clarke) → limited to particular thing. Narrow. (puts character into issue?)
● Calling witnesses in rebuttal of witness for other side
● C.E. of witnesses for other side
