5. Rehabilitating 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

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Where opposing counsel has attacked the general credibility of a witness, counsel may use approved techniques in an effort to rehabilitate that credibility. Those techniques include re-examination of the witness who has been attacked, calling evidence about the positive reputation of the witness for trustworthiness, or calling witnesses to negate or weaken expert testimony by opposing counsel relating to the hidden defects said to affect the witness.

5. 1) Relevance and Methods of Rehabilitation

Although a party cannot generally call evidence to bolster the credibility of her own witnesses, opposing counsel can open the door, allowing this to be done. As indicated, an allegation of recent fabrication can lead to proof of a previous consistent statement. The door to proof of general credibility is opened more broadly where opposing counsel makes the credibility of the witness (as opposed to the credibility of the specific testimony the witness has provided) an issue. The techniques available to opposing counsel to do so include proving the prior convictions of the witness, calling reputation or perhaps even lay opinion evidence relating to the lack of trustworthiness of the witness, calling

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expert opinion evidence about the witness’s hidden defects, and cross-examining him about his discreditable acts or associations.90The "approved" techniques for establishing or challenging credibility are all intended to be efficient methods of proof for dealing with the issue of the credibility of a witness, once that issue has been raised. They are designed to keep the trial from becoming prolonged by detailed excursions into distracting side issues relating to the credibility of each witness. Proof by other witnesses of the specific acts of a witness indicative of credibility or a lack thereof is therefore not allowed.

While opposing counsel can cross-examine a witness about her past, specific discreditable conduct, or associations, those are collateral facts. If the witness does not admit to the suggested facts, opposing counsel is "stuck" with the answers.91There is therefore no evidence to rebut. If the witness admits to the suggested discreditable facts, counsel can clarify those facts in re-examination to cast them in a more benign light. Or counsel can call reputation witnesses. Counsel cannot, however, call other...

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