Examination-in-Chief

Limitations

Relevance to Facts-in-Issue

The examiner in chief cannot use leading questions.

The examiner in chief cannot, in general, cross-examine his witnesses.

The examiner in chief cannot, in general, call prior consistent statements of his witnesses.

Leading Questions

are questions that directly or indirectly suggest the answer to the witness

the objection should be made by the opponent at the time of the question

the TOL normally decides the issue right away, without excusing the TOF, and either permits the question, or asks that it be rephrased in a non-leading manner

Notes on Leading Questions

Whether a leading question will be allowed, has everything to do with how material the matter questioned is to the facts-in-issue.

If the leading question touches on the key issue in the case, it is likely to be disallowed.

If the leading questions centre on introductory matters, or matters unquestionably proven or not at issue, they are more likely to be allowed.

Notes on Leading Questions

Leading questions are permitted for such things as name, address, occupation, time and place.

Leading questions are permitted for matters that do not go to the issue to be decided.

Notes on Leading Questions

Counsel should not object merely because a question is leading per se, unless the issue is critical to his case

Leading questions are permitted to draw the witness’ attention to persons or things, except where identity is at issue.

Notes on Leading Questions

Notwithstanding that generally one may not ask leading questions either in examination in chief or on re-examination, the court has an unreviewable discretion to permit such questions to further the interests of justice.

Discretion to Permit Leading Questions

This discretion of the TOL will be exercised in favor of child and disabled witnesses, or perhaps those with language of origin issues, in order to ensure they understand the questions, and can get their evidence before the Court.

A proponent/examiner- in chief who wishes this discretion to be exercised, should, where an objection is made to their leading question, ask for leeway due to the witness’ limitations.

Effect of Leading Questions: Warning

Proponent counsel must understand, however, that the risk they run in asking, or being allowed to ask leading questions, is that where admissible, the TOF is allowed to consider the leading nature of the question in determining weight – ie. Was it the story of the witness? Or that of the examiner-in-chief?

An answer on a critical issue evoked by a leading question is entitled to little, if any, weight.

Opponent counsel can ask for this instruction to the TOF.

Practice Point

By avoiding leading questions for matters in issue, counsel will augment the weight of his witness’ testimony.

Note

A TOL makes his decisions on whether a question is leading on the nature and content of the evidence to the point of objection in the trial.

If proponent counsel is merely repeating evidence already given by a witness in answer to non-leading questions, to the same witness, this is considered proper. In fact, what the proponent counsel is really doing is having the witness tell his/her story in their own words, and then seeking clarification: “You stated previously in your evidence that the car was driving really fast, can you provide us an estimate of the speed?”

Further, if certain matters have been obvious in the evidence of all witnesses to that point in the trial, and the facts in issue have solidified, TOL’s will usually allow leading to get to the point with the next in a long line of witnesses. E.g. “We have heard from four witnesses thus far that the time is approximately midnight, the location is Whyte Avenue, that there was a fight between the accused and one other individual, did you see that fight? If so, what can you tell us about it? Who started the altercation?”

Leading questions are permitted, subject to the Judge’s discretion, to contradict by a witness’ evidence an assertion by a previous witness.

Note

The rule against leading questions is only a rule against the examiner, not the cross-examiner. The cross-examiner is expressly allowed to lead because he is adverse in interest.

The Forgetful Witness

Present Memory Refreshed vs. Past Recollection Recorded.

What is the difference?

The Question

Where your witness is forgetful, ask yourself, does the witness have a present memory of the events, but requires assistance with the details that they have made a recording of? If so, present memory refreshed applies.

If your witness, however, has no present memory of the events at issue, but did record their observations contemporaneously, past recollection recorded applies.

Present Memory Refreshed

Your witness has notes which include details such as dates, times, exact quotations etc.

Important: your witness testifies to a need to refer to notes, made in their own handwriting, without addition or deletion, contemporaneously with the events, for the purposes of refreshing their memory on those points. These are the questions the proponent wants to ask to lay the foundation.

Note

These matters have to be established by the proponent because the rule is that a witness takes the stand without any documentary (or otherwise) assistance.

To have a witness refer to a writing to assist their testimony requires judicial consent, obtained through application by the proponent.

Note

In present memory refreshed, the writing does not become an exhibit and therefore is not seen by the TOF.

Also, as a practice point for the opponent, make sure the notes are returned to their closed condition as testimony continues after the reference thereto.

It is improper for a proponent, intending to refresh the memory of a witness, simply to read the statement to the witness and to ask if the statement is correct.

Past Recollection Recorded

Here, your witness testifies to a lack of recollection, but also testifies to a contemporaneous recording, in their own hand, or by another’s, but confirmed by them. They assert the truth of what they recorded, even if they cannot remember the entry.

Past Recollection Recorded

As with present memory refreshed, judicial approval is required to allow the witness to refer to foreign materials.

In Past Recollection Recorded, the writing, being the best evidence, becomes an exhibit, and, essentially, becomes the evidence of the witness, subject to cross-examination.

Requirements

The record must be made at the time of the transaction or shortly thereafter, when the facts are fresh in the memory of the witness.

The witness must affirm the accuracy of the record at the time it was made.

Notes

A witness may refresh his memory from the record of another, provided that the witness verified the accuracy of the other’s record when the witness’ memory was still fresh.

Notes

Evidence that a record was made by someone who was under a duty to make such a record or entry is acceptable to help establish the record is accurate.

Evidence that a record was made at the time as a normal, regular practice is acceptable to help establish that the record is accurate.

Rule Against Cross-Examining Your Own Witness

The general rule: an examiner cannot cross-examine his own witness, put leading questions to the witness, or attempt to impeach his credibility.

For example, in general, there is no ability to cross-examine your own witness on prior inconsistent statements, or suggest your own witness is not telling the truth.

Requires Leave

If you wish to cross-examine your own witness, put prior inconsistent statements to them, or otherwise impeach their credibility, you must seek advance leave from the TOL.

You are seeking a ruling of “adversity” (known in the common law as “hostility”). You are seeking “leave to cross-examine an adverse [hostile] witness.”

Adversity/Hostility

Can be found by the TOL in the witness’ attitude, demeanour, combativity, substance of their evidence or, more commonly, having previously uttered a prior inconsistent statement (PIS) to what they are presently testifying to.

A TOL may find a witness adverse solely on the basis of a PIS.

Scenario

Witness takes the stand at your request. You have a written statement from them, and therefore a general idea of what they are going to say. They take the stand and veer off from what they have earlier committed themselves to, and it is not helping (and likely is hurting) your case.

Scenario Continued

Without leave, you cannot launch into a cross-examination – such as “Who is threatening you? Who paid you to change your testimony? Didn’t you tell the police otherwise?”

You make an application to the TOL for a finding of adversity (hostility in the common law) pointing to the attitude, demeanour, combativity, or simply the prior inconsistent statement (which, at this point, is only for the TOL to see).

Scenario Continued

Once declared adverse (hostile) by the TOL, you now have leave to cross-examine your own witness.

However, to what end?

To What End?

If you show them to be incredible, arguably all you have done is to neutralize their testimony, asking the TOF to give it no weight. You don’t have, for example, the great testimony you had hoped for that would help your case.

Your cross-examination is one of credibility, unless, of course, they turn during the cross-examination, and revert to the testimony that you hoped for.

To What End?

If your request to cross-examine is based on a prior inconsistent statement (PIS), and adversity is found, you are then permitted to cross on the PIS. However, if the witness does not adopt same as being the truth, then it (the PIS) is not in POTOC, but simply in for the purposes of showing that the witness says different things at different times about the same matter – ie. destroys their credibility. As the proponent, if you have nothing else (or very little) to make out your your facts-in-issue, this has hurt your case.

To What End?

Your job, then, on cross of your own witness is clear:

(a) Have them acknowledge the statement is theirs (the TOF can determine its inconsistency – this is the credibility stage); AND

(b) Have them acknowledge that their earlier statement was/is true – if they do so, the statement is now in POTOC. This can be done even in a roundabout way “You would not submit a statement to the police unless it were true …”

EXCEPTION

The exception to the general rule that without adoption, a PIS only goes to credibility is, of course, KGB.

KGB allows a PIS to go in POTOC where necessity and reliability are made out, even without adoption.

Note

If the party is disappointed in the contrary testimony of one of its witnesses, it is free to establish its case by other witnesses.

This can be done without leave.

ss. 9(1) and (2) CEA

9(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the Court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio or videotape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.

9(2) procedure (Milgaard)

(1) Proponent advises Court of 9(2) application.

(2) TOF is excused.

(3) Counsel produces PIS to TOL.

9(2) Procedure Cont’d

(4) If TOL determines there is an inconsistency between witness’ present testimony and their previous statement, the TOL calls upon the proponent to “prove the statement.” If TOL sees no inconsistency, the application is refused.

9(2) Procedure Cont’d

(5) The proponent “proves the statement” hopefully through an admission from the witness that it is their statement, even if they no longer agree to its contents. If they deny it is their statement, the proponent can call other witnesses on the issue.

(6) Counsel for the opponent has the opportunity to cross-examine on the voir dire, both the witness and any others called. The cross-examination is for the purpose of exploring the circumstances in which the statement was made. If those are suspect, the TOL can refuse the 9(2) application and disallow any cross-examination by the proponent in front of the TOF on the alleged PIS.

9(2) Procedure Cont’d

(7) The TOL decides if he is going to permit the cross-examination on the PIS in front of the TOF, if so, the TOF returns, and the proponent (now cross-examiner) cross-examines the witness on his PIS.

Effect of Cross

Having proved it is the statement of the witness, if said statement is accepted and adopted by the witness as the truth, it becomes part of their overall testimony and is considered POTOC.

If the statement’s truth is denied, the cross-examination only goes to destroy the witness’ credibility. Subject to KGB, which would take the voir dire a step further, the PIS is not considered POTOC.

Note

If cross-examination of your own witness is allowed for reasons of a PIS, you are restricted to a cross-examination on that statement, not one at large, on all issues.

If you are allowed a cross-examination based on general hostility, a general cross-examination is allowed.

Note

When allowed to cross-examine your own witness, then the rules normally restricting examination-in-chief no longer apply – ie. you are now allowed to lead for example.