6. Cross-examination

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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The opportunity to cross-examine in order to test or to challenge a witness’s evidence is a vital part of the adversary process. In a criminal case, the Supreme Court of Canada has affirmed that the accused has a right to cross-examine witnesses for the prosecution - without significant and unwarranted constraint - as an essential component of the right to make full answer and defence.87Cross-examination has two basic goals:

(1) eliciting favourable testimony from the witness, and (2) discrediting the testimony of the witness. The practice in Canada is to follow the "English Rule," which allows the cross-examiner to inquire into any relevant matter, as compared with the "American Rule," where cross-examination is limited to subjects or topics that were covered in examination in chief and to matters relating to the witness’s credibility.88

6. 1) The Method of Questioning in Cross-examination

The use of leading questions in cross-examination is permitted; however, the use of leading questions becomes improper where the witness proves partisan to the cross-examiner’s side.

The cross-examiner presumably questions a witness partisan to the other side. In this situation, the witness is not as susceptible to suggestion, and leading questions are not improper. On the contrary, they are entirely permissible, and counsel are well advised to lead as a means of controlling the testimony of these adversary witnesses. The asking of leading questions in cross-examination may become improper when the witness is in fact biased in favour of the cross-examiner. For example, the plaintiff in an action against a defendant company calls one of the defendant’s employees to testify. In this circumstance, the employee

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may prove to be very loyal to the defendant, and defendant counsel may be prohibited from asking leading questions in cross-examination.89

6. 2) Cross-examination on Credibility

Each witness who takes the stand puts his or her credibility into issue, and counsel in cross-examination are free to discredit or to "impeach" the witness’s credibility.

As indicated, the cross-examiner may question on any relevant matter. Counsel are allowed to explore any matter directly related to the facts in issue and to probe areas affecting the credibility of witnesses. All witnesses when they take the stand put their credibility into issue. Cross-examiners, therefore, are free to discredit or "to impeach" a witness’s credibility. Wigmore likened impeachment to "explanation."90

The witness has made an assertion in examination in chief, and in cross-examination counsel seeks to explain away that evidence. The witness’s evidence is explained away either by discrediting the witness or by discrediting the testimony, or both. An attack on the witness goes to the witness’s veracity. An attack on the testimony goes to the accuracy of the witness’s testimony. Cross-examination designed to impeach a witness may focus on a number of areas:

· by showing bias, prejudice, interest, or corruption;

· by attacking the character of the witness through raising prior convictions, prior bad acts, or poor reputation;

· by contradicting the witness through previous inconsistent statements;

· by challenging the witness’s capacity to observe, recall, and communicate accurately;

· by putting contrary evidence to the witness; and

· by showing that the witness’s evidence is contrary to common experience.

In general, when a cross-examiner asks a question relating purely to credibility, the witness’s answer is final. This practice is called the collateral facts rule, which prohibits the presenting of evidence to contradict a witness on a collateral matter.

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6. 3) Limitations on Cross-examination
6. 3 (a) Generally

Cross-examining counsel are bound by the rules of relevancy and are barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. In addition, counsel are not to ask questions that cast aspersions on a witness or suggest contrary facts unless the cross-examiner has a "good faith" basis for the question.

Although the ambit of cross-examination is broad and counsel are given wide latitude, this is not to say that "anything goes." The trial judge has a discretion to check the cross-examination if it becomes irrelevant, prolix, or insulting.91Moreover, as a matter of professional conduct, counsel must not "needlessly abuse, hector or harass a witness."92Accordingly, there are certain limits placed on the questions that counsel can ask. While it is true that the questions asked are not evidence - only the answers given - it is also true that suspicions are raised by the mere asking of the question. There is power in innuendo. For example, the accused calls a friend to testify as an alibi witness. The Crown in cross-examination asks, "You’ve lied for the accused before, haven’t you?" Although the witness denies the accusation and the denial is the evidence, the suggestion has been made. Is it a proper suggestion? That depends on whether the cross-examiner has a basis for asking the question. The cross-examiner must have a "good faith basis" for the suggestion. In R. v. Lyttle, Justices Major and Fish explained:

a "good faith basis" is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court: to suggest what counsel

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genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited.93Does the cross-examiner need to adduce evidence to support the suggestions made? No. There had been confusion spawned by the Supreme Court’s decision in R. v. Howard, which some courts interpreted as requiring counsel to prove the facts asserted.94 The Supreme Court in Lyttle put this interpretation to rest. The Court clarified that Howard was a case where counsel sought to cross-examine on "inadmissible" evidence and that the ratio of Howard is that counsel are not allowed to cross-examine on irrelevant or inadmissible matters. There is a crucial difference between questions that relate to and rely on inadmissible evidence and cross-examination on unproven facts. As the Court noted, it is not uncommon for counsel to believe that something is true, without being able to prove that it is so.95Therefore, counsel do have a right to cross-examine on relevant and otherwise admissible areas - without proof - provided they have a "good faith basis."

Where a certain line of questioning appears to be tenuous or suspect and imputations are raised, the trial judge may enter into a voir dire to seek and obtain counsel’s assurance that a good faith basis exists for putting the questions. Such a voir dire also alerts the judge and counsel to the potential need for a caution to the jury that the witness’s answers given in response to the questions is the evidence and that there is no evidence before them to support the allegations made.96The key parameters are relevancy and materiality. Counsel should be allowed to pursue relevant and material lines of questioning and trial judges ought not prevent counsel from exploring relevant issues.97

However, the scope of cross-examination is by necessity contextual. Relevancy and materiality are not fixed concepts, but are fluid and change with the issues at hand and the type of hearing involved. In certain circumstances, limits may be placed on cross-examination to ensure that the trial is effective, efficient, and fair to both sides.98Some cross-examinations of necessity take time. In R. v. Lowe the defence argued that cross-examination of an accused for nineteen days

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was excessively long, to the point of being oppressive. The Court of Appeal disagreed. The cross-examination in that case was lengthy - but relevant. Chief Justice Finch wrote, "In assessing the propriety of cross-examination, the law distinguishes between cross-examination that is ‘persistent and exhaustive’, which is proper, and cross-examination that is ‘abusive,’ which is not."99

6. 3 (b) Limits on Crown Counsel in Cross-examination of the Accused

It is improper for Crown counsel to ask the accused as to the veracity of Crown witnesses and it is improper for Crown counsel to question the accused as to otherwise inadmissible bad act evidence.

Justice Cory in R. v. Logiacco stated that the Crown prosecutor "must be a symbol of fairness."100Restraint is especially required in the cross-examination of the accused and certain lines of questioning are simply not permitted.101It is improper to ask...

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