Examination of Witnesses Flashcards
When are leading questions not allowed
Examination in chief
What are the testimonial factors
Testimonial Factors
● Trier of fact must make inferences regarding:
○ Witness use of language
○ Witness sincerity
○ Witness memory
○ Witness perception
● Affects character for credibility / reliability
● Cross examination is used to bring out weakness in testimonial factors
● Also consider demeanor
What are leading questions and why are they not allowed?
Leading Questions
● Two kinds:
○ Questions that suggest or imply the answer
○ Questions that presuppose facts which the witness has not yet testified to
● Why do these need to be avoided?
○ Formal rule against asking leading questions of your own witness. Other party can object, judge can oblige you to reframe Q.
■ Policy: danger that what witness says might not honestly be what they remember
○ Tactically, it is poor since it can leave trier of fact wondering whether witness is truthfully recalling what happened or even remembers what happened.
What are the exceptions to the rule against leading questions
○ Introductory facts, facts not in dispute
○ Allowed in cross examination
○ Identification of persons or things
○ Contradictions of statements made by another
○ Complicated or technical matters (easy to lose trier of fact, so given latitude)
○ Crown grants leave to treat your own witness as hostile or adverse
○ Where the witness has difficulty communicating for certain reasons and the court grants leave to lead the witness (discretionary)
○ Open ended: where it is in the interests of justice to allow leading
What is past recollection recorded and what are the prereqs?
Past Recollection Recorded: where a witness doesnt remember past events but has recorded it
● Prereqs:
○ Must be recorded in some reliable way
○ Must be sufficiently fresh and vivid at the time of recording such that it is probably accurate
○ Witness must be able to assert that record accurately represents knowledge and recollection at the time
○ Original record must be used if available (record itself becomes evidence - as an exhibit)
What is present memory revived and what are the prereqs?
Present Memory Revived: where a witness more or less remembers but maybe not all/complete details, so past record can be used as an aide memoire to assist with testimony.
● Prereqs:
○ Witness knows facts but has memory lapse on stand
○ Witness knows the report or other writing, which was made reasonably contemporaneously with events by witness or another person, will refresh his memory
○ Witness is given the report or writing and reads the pertinent part
○ Witness states his memory is now refreshed
○ Witness now testified as to matters within their knowledge/memory without any further aid from the report/recording
● Record itself does not become the evidence - witnesses evidence does. Record just helps memory.
Who can give testimony outside the courtroom or behind a screen?
● CC s 486.2, 486.3 → testimony outside the courtroom or behind a screen
○ 18yrs or younger or disabled, all witnesses
○ Any witness for certain offences (organized crime, national security, terrorism)
● CC S714 → testimony through audio or video.
○ Outside of canada
○ Avoids hardship to witness
● CC s 715.1, 715.2 → if witness under 18 or with disability made video taped statement about what happened before trial, that witness may adopt the contents of the video tape as their own evidence without going through the full examination process. Witness must go through the motions of adopting the video tape as their own evidence during the trial, then the tape is played in court… See test for adoption of video by a witness.
What is the test for whether a court should permit adoption of a videotape by a witness?
○ Test for whether court should permit adoption of videotape by witness – see R v F(CC)
■ Lower than the requirement to adopt prior inconsistent statement because has built in reliability: (a) statement be made within a reasonable time; (b) trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor and to assess the personality and intelligence of the child; (c) child attest that he or she was attempting to be truthful at the time that the statement was made. Child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made.
What is cross examination
● C.E. can be on any matter at issue including credibility - not limited to exam in chief (ex can assess testimonial factors)
● They key component of adversarial process that enables direct challenge to other partys case/evidence
○ Links with right to full answer and defence and ability to respond to crowns evidence
○ Essential importance for determining credibility, even in honest witness (can show weakness of sight, hearing, weather conditions, medication etc)
What are the goals of Cross Examination
○ Show bias, prejudice, interest, corruption, or other concerns re: believing witness
○ Attacks on character of witness
○ Prior inconsistent statements
○ Challenge capacity to observe, recollect, communicate
○ Putting contrary evidence to witness
○ Show that witness evidence is contrary to common experience
What are the limits on Cross Examination?
○ Good faith basis ⇒ Counsel can ask questions to affect credibility of witness. Basis need not be proven fact but needs to be on good faith basis. Dont need to lead evidence to C.E. (R v Lyttle).
○ Crown cant ask about veracity of Crown witnesses
○ Cant C.E. on inadmissible evidence of bad character, discreditable conduct of accused (can examine discreditable conduct of another witness)
○ Cant be C.E. about failure to answer police questions or failure to advance a defense at trial
○ Cant C.E. on motive for giving exculpatory testimony
○ Rule in Browne v Dunn
■ If your witness is going to give evidence that is conflicting with the witness on the stand from other party, you MUST cross examine the witness on those issues where the evidence will conflict.
■ Failure to C.E. in accordance with browne v dunn may lead to the following remedies:
● Witness A may be recalled and examined on those issues where witness A’s evidence will contradict Witness Bs evidence
● Evidence of witness B (at least those parts that contradict) may be struck from the record.
○ Collateral Facts Rule (see later in credibility)
What is the rule in browne v dunn?
■ If your witness is going to give evidence that is conflicting with the witness on the stand from other party, you MUST cross examine the witness on those issues where the evidence will conflict.
■ Failure to C.E. in accordance with browne v dunn may lead to the following remedies:
● Witness A may be recalled and examined on those issues where witness A’s evidence will contradict Witness Bs evidence
● Evidence of witness B (at least those parts that contradict) may be struck from the record.
Can A statement from a Witness who was only partially cross examined by admitted?
Incomplete Cross Examinations
● Ex witness testifies but not to everything and then dissapears before C.E.
● Factors to consider:
○ Reasons for the incomplete C.E. (conduct of lawyers, witness… bribes?)
○ Impact of incomplete C.E. (prejudice? To C.E.’ing party?)
■ Importance of evidence
■ Can evidence still be evaluated by trier of fact
■ How much C.E. was completed? What was the context/effect of the incomplete C.E.?
■ Were there still significant areas for C.E. left unchallenged?
■ Was council able to cross-examine on disabilities?
○ Possible Remedial Actions? (adjournment, not allowing the witnesses evidence on record, instricting trier of fact to place less weight on the evidence)
