Rules on the Cross-examiner

General.

Once a witness is called and sworn he is subject to cross, even if called for the sole purpose of producing a document and is not examined in chief.

Scope.

Cross-examination is not limited to questions asked in direct examination.

R. v. Lyttle (2004) 180 CCC(3d) 476

Wide latitude is permitted on cross including resort to unproven assumptions and innuendo in an effort to crack the untruthful witness. Such latitude is tempered by the necessity of a good faith basis for putting the question, but relieves the cross-examiner of the necessity of having independent proof before asking the question.

Lyttle cont’d

The “good faith basis” is a function of the information available to the cross-examiner, a belief in the likely accuracy of the information and the purpose of its utilization. Accordingly, information falling short of admissible evidence may be put to the witness.

Purpose of Cross

(a) Diminish the effect of a witness’ evidence;

(b) Discredit the witness;

(c) Draw out favorable facts for the cross-examining party.

Browne v. Dunn

• A.k.a. “duty to cross-examine”

• As a rule of weight, and not admissibility, the TOL expects the cross-examiner to put their version of events to the witness, before later calling evidence contradicting them on those points.

Effect

• Failure to allow the witness to comment on the proposed contradiction or alternative version of events can result in an instruction to the TOF that they can give less weight to that aspect of the cross-examiner’s case, since the witness on cross never had an opportunity to comment thereon.

Effect

• You are also open to the allegation by the proponent to the TOF that you have tacitly accepted the evidence as you did not cross-examine.

Browne v. Dunn

• “If you intend to impeach a witness you are bound whilst he is in the box to give him an opportunity of making any explanation which is open to him and that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

Lyttle

• The rule in Browne v. Dunn, although a sound rule of general application designed to promote fairness to witnesses and the parties, is not absolute. The extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case.

• The trial judge can also recall the witness for further cross-examination.

• It is also open to the TOL to determine that due to the denial (express or implied) of the witness to the general position of the opponent, it is then unnecessary for the opponent to cross-examine on every detail of the opposing version.

Credibility/Reliability

• The party may, without attacking the credit or veracity of a witness, question the witness’ intelligence and his faculties for sight, hearing, touch and smell.

Cross-examining on PIS

• Sections 10 CEA

• A witness may be cross-examined on a statement in writing without it being shown to him, provided such statement is not used to contradict him, but such writing must be capable of being produced.

• When the statement is used to contradict the witness, the previous statement should be shown to the witness without comment on the description of the statement and without it being put into evidence, thus permitting the witness to refresh his memory prior to counsel attempting to contradict him.

Notes

• Portions of the statement can be put to a witness, but must remain in context. If they do not, examining counsel should object, or put the qualifying portions to the witness in re-examination.

Notes

• Unlike with s. 9 CEA, the TOL plays no role in determining whether a PIS is inconsistent to allow the cross-examination. The cross-examination on a prior statement does not require leave.

• In general, a statement does not become an exhibit merely because it is cross-examined upon.

• The TOL does have the discretion to mark it where fairness dictates that the entire statement be before the TOF.

POTOC?

• If the previous statement is proved (usually acknowledged by the witness), it only goes to credibility, unless adopted by the witness.

s. 11 CEA

• Applies to oral and written statements.

• Requires that a witness be given notice during cross of his PIS. This is done by drawing his attention to the time, place and person involved in making the statement and to the substance of the statement. Before proof may be given that he did make it, it must be put to him in this fashion.

Rule Against Contradiction on Collateral Matters

• Rebuttal Evidence is not admissible following cross-examination to merely contradict a witness’ evidence for the purposes of discrediting his answers on cross-examination, where those answers were relevant only to credibility.

Collateral Fact Rule

• Is a rule of second stage admissibility.

• It in no way restricts the questions you ask – ask away about the prior history of the witness and their past or present bad associations. Just know this: if the question is relevant solely to credibility, and not any fact-in-issue – the witness can lie with impunity in the trial at bar, as the TOL will prevent you from contradicting the witness with extrinsic evidence.

Collateral Fact Rule

The effect of the rule is this:

The cross-examiner is “stuck with the answers” of the witness on matters of pure credibility and cannot contradict him.

• Remember there are statutory exceptions, such as s. 12 CEA which allows the cross-examiner to prove a criminal record where denied, even though a matter of pure credibility.

General Restraints on Cross

• The Court will act to limit or disallow insulting, abusive, overly aggressive, or overly repetitive cross-examination.

• The proponent of the witness now under cross should play a role in so objecting, where appropriate.

General Restraints on Cross

• A cross-examiner should not invite argument with the witness through his questions (“do you ask the jury to believe?)

• A cross-examiner should not ask one witness whether another witness is lying, particularly asking them to speculate why. In criminal cases, of course, there is no onus on the defence to so explain. It also borders on the irrelevant, and is more prejudicial than probative.

General Restraints on Cross

• There is no place in cross-examination for personal opinions or argument.

• It is improper to ask questions counsel know are privileged.