6. Challenging the Credibility of Your Own Witness
| Author | David M. Paciocco - Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice - Professor of Law, Bond University |
| Pages | 506-520 |
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A witness is "hostile" when he does not wish to tell the truth because of a motive to harm the party who has called him, or to assist the opposing party. A witness is "adverse" if the evidence he gives is unfavourable, or opposed in interest, to the party who has called him.
With the leave of the court, a party can cross-examine his own "hostile" witness. The precise scope of permissible cross-examination is not entirely settled. There are those who believe it should be confined to questions intended to discredit the testimony the hostile witness has given, and should not be used to try to get the witness to furnish substantive information that he would not furnish when being examined in chief. We disagree with this view. In our opinion, cross-examination of a hostile witness should include questions designed either to show that any harmful evidence given by that witness is not credible, or to attempt to persuade the witness to furnish evidence helpful to the party who called him.
Even if a witness is not hostile, with leave of the court a party can cross-examine him if that witness is "adverse" under the applicable Evidence Act. Again, there are those who maintain that cross-examination of an adverse witness should be restricted to questions intended to discredit the testimony that has been given, and others who believe that it should be even more confined, limited to questions about prior inconsistent statements made by the adverse witness. It is our view that neither restriction is appropriate. The cross-examination of adverse witnesses should entail any questions that challenge the evidence given by the witness or any questions intended to provoke the witness into furnishing positive testimony helpful to the party who called him.
For cases falling under the Canada Evidence Act there is yet a third path to cross-examining one’s own witness, this time without the need for either a declaration of hostility or adversity. Where the witness has made a previous statement inconsistent with his testimony, the judge can grant counsel leave under subsection 9(2) to cross-examine the witness, but only about that statement. This can be done without declaring the witness adverse or hostile, provided the previous inconsistent statement was made in, or reduced to, writing, or recorded on audiotape or videotape. In addition to cross-examining the witness about that statement, counsel can prove that it was made.
Where the previous inconsistent statement is oral or where the case is covered by a provincial evidence statute, a court must
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declare the witness "adverse" before allowing the previous inconsistent statement to be proved. In deciding whether the witness is adverse, the previous inconsistent statement can be considered.
Counsel should attempt to refresh the memory of the witness using appropriate techniques before seeking leave to cross-examine the witness or to prove his previous inconsistent statements.
Under no circumstances can the party who has called a witness attack the general credibility of that witness by leading evidence or asking questions for the purpose of demonstrating that he is not the kind of person who should be believed.
The common law has long taken the position that a party who calls a witness holds that witness out as worthy of belief. As a result, if the witness disappoints the party who called her, the law does not allow that party to attempt to show that the witness is not a credible person. There are even strict limits on the ability of the party calling a witness to attempt to challenge the witness in an effort to get her to produce helpful evidence, or to neutralize any damaging testimony she has given. These rules require reconsideration. Functionally, they are confusing and contradictory. There is uncertainty about how the various rules fit together. From a policy perspective, the rules together may be too restrictive.
Because counsel implicitly "vouches for" the witnesses she calls, it is never appropriate for her to attempt to challenge her own witness by calling reputation evidence about his lack of trustworthiness, by using his criminal record to discredit him, or by cross-examining him about his previous discreditable acts or associations. Each of the Evidence Acts confirms the common law by providing that "[a] party producing a witness shall not be allowed to impeach his credit by general evidence of bad character."94This does not mean that a party is bound to accept everything its witnesses say, or to refrain from referring to things that are established in the evidence that diminish the credibility or reliability of their witness. For example, in R. v. Biniaris, a Crown witness, who was a friend of the accused, seemed anxious to accept any suggestion being made by defence counsel during cross-examination. No error was committed when the Crown pointed this out during submissions.95
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One way to attempt to neutralize the evidence of one of your own witnesses is to call other witnesses who provide a different and more helpful account. There is no limit on your ability to do so. For example, you can call two witnesses to an accident, even though one believes the car was green and the other, black. You can also ask the trier of fact to prefer the testimony of one where there is some basis for doing so.
This seemingly self-evident point is worth mentioning because of a potentially misleading provision in the Canada Evidence Act which has been carried into some of the provincial statutes.96Subsection 9(1) provides, in relevant part, that if the witness produced by a party "in the opinion of the court, proves adverse, the party may contradict him by other evidence." On its face, this suggests that before contradicting him by other evidence, it is necessary to have the court declare him "adverse." Fortunately, this apparent requirement is simply ignored as a drafting blunder.97
Where a witness is disappointing counsel by failing to provide expected testimony and this appears to be because he has forgotten, the techniques for refreshing memory, including asking leading questions with the leave of the court, may be of assistance.98In R. v. Glowatski,99 after being presented with a statement that recorded his past recollection, a reluctant Crown witness adopted the accuracy of some of what he told the police. While these techniques should only be used where there is a foundation for concluding that "memory" problems may account for the failure of the witness to testify as expected, a judge has a discretion to require that counsel attempt these techniques before moving to the more invasive methods of trying to prove that the witness has previously made inconsistent statements or by attempting to cross-examine the witness.100
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Although generally a party cannot cross-examine her own witness there are rules that allow this to be done in some cases. Each of those rules, described immediately below, require the party to first obtain a formal ruling from the trial judge permitting cross-examination to occur. Unless a formal ruling has been made after the proper application of the relevant test, it is an error of law for the trial judge to permit such cross-examination.101
At common law, a court has the power to grant leave to a party to cross-examine their own witness when that witness is "hostile." A witness is hostile when he does not give his "evidence fairly and with a desire to tell the truth because of a hostile animus towards" the party who called him.102In essence, there is something motivating the witness to withhold or colour inappropriately his evidence. It is not necessary for a party to establish what this motivation is. The judge must simply be satisfied that some hostile animus exists, based on his demeanour, his general attitude, and the substance of his evidence. For example, in R. v. Haughton (No. 3),103a witness who had identified the accused at the preliminary inquiry was declared hostile after failing to identify him at the trial. His hostility was apparent from his failure to tell the Crown before he took the stand of his claimed belief that he had misidentified the accused at the preliminary inquiry, and from the unconvincing explanation he gave as to why he knew immediately after the preliminary inquiry that he had identified the wrong man. All too often Crown witnesses are "hostile" simply because of fear, whether reasonably held or not.
Some of the authority on hostility is quite grudging. Older case law suggested that the hostility has to be revealed through the demeanour and attitude of the witness, although this seems unduly rigid. It would mean that a witness who lies politely cannot be cross-examined, but one who bristles can be. The distorting shadow of this authority can be seen in R. v. Malik104 where the trial judge presiding over the Air India bombing trial held that hostility is more than an interest at variance with the Crown’s, but rests in an animus against the Crown. It...
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