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 nonleading 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 reexamination, 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-inchief?

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 crossexamine 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 crossexamination – 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 crossexamine 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 crossexamination, 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 crossexaminer) 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 crossexamination 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.