Impeachment: seeking to undermine the credibility and reliability of a witness – challenging that witness’ testimonial capacity Broadly speaking, there are five ways to attack the credibility of a witness:
Attack the witness of prior inconsistent statement – probably the most effective and most frequently used
Show that the witness is biased – emotional ties of kinship, hostility to a party, pecuniary interest, etc.
Show defect in the capacity of the witness to testify
Bring another witness to contradict the testimony of the witness
Prior Inconsistent Statement
Important distinction between using a prior inconsistent statement to impeach your opponent’s witness and to impeach your own witness
In the former, natural to want to attach the witness as part of the opposing case.
The latter generally only arises when you are blindsided by your own witness – they have important evidence to give for you side, but they decide they are not going to cooperate.
Impeaching your Opponents Witness
The common law limitations with respect to collateral facts have been written into s. 10 and 11 of the CEA
S. 10 governs cross-examinations on a written statement: witness may be cross-examined as to previous statements that they made in writing (or reduced to writing from an audio or video record) without showing the witness the statement prior to cross-examination
Common law governs cross-examination on an oral statement: impeachment by proof of a prior contradictory statement could only be done if preceded by cross-examination of the witness on that particular matter.
S. 11 deals with permission to prove extrinsic evidence and put it before a witness: the circumstances under which the statement was made must be mentioned to the witness before they can be asked whether or not they made the statement
Proof that a witness made a prior inconsistent statement may be gained:
Directly from the witness during cross-examination, or
By proof from another witness
Generally four steps in cross-examining on a prior inconsistent statement:
Confirm with some precision the witness’ evidence in chief
Confront them with the fact that they made an earlier statement
Where the witness claims to have no knowledge of a fact about which he made a previous statement:
An affirmative answer that was contradictory to a previous statement could be impeached
However, a negative answer is not damaging, but merely disappointing, and may not be impeached.
Impeaching Your own Witness
If your witness changes their testimony at the critical moment, or says “I don’t remember, their counsel is usually taken by surprise
CEA s. 9 contemplates situations where witness causing you trouble and you want to discredit them
CEA s. 9(1): You are not allowed to impeach your own witness by showing general evidence of bad character.
However, if in the opinion of the court, the witness proves “averse”, you may contradict them or show that the witness gave prior inconsistent statement.
Definition of Averse – Wawanesa
Averse was taken to mean “opposed in interest” which would include “hostile” but of course could be much broader
CEA s. 9(2): If your witness made a prior written or recorded statement that is inconsistent with their present testimony, the court may, without proof that the witness is averse, allow you to cross-examine your witness on that statement (not at large). Issue with Impeaching Your Own Witness
By putting someone on stand, you’re vouching for their credibility; can’t impeach them.
Problem: someone has info that helps your case but is being very unhelpful.
On stand: “present recollection refreshed:” no leading questions ; can revive memory by “song, scent, photograph, an illusion, past statement ” (US v. Rappy)
Extent to which witness needs refreshing goes to weight/credibility
Witness couldn’t be expected to remember
Past recollection recorded: witness can rely on document as a source of testimony if witness is able to assert that document accurately represents witness’ recollection at time recorded [eg. police notes, accountant’s financial statements]
Witness becomes uncooperative or inconsistent (s. 9 CEA)
Dealing with an “adverse” witness:
At CL: could ask to treat witness as hostile and impeach and lead them.
More then unhelpful, actually shows attitude against the party examining.
Judge looks at demeanour and substance of the evidence.
adverse witness: judge concludes witness has assumed in her testimony a position opposite to that of the party calling them (have become “unfavourable”) – old CL standard higher “hostile animus”
Re. prior oral statement - s. 11 CEA [can cross-examine on oral statement and prove by calling other witness, but have to give witness enough info re. the supposed occasion such that she can explain/confirm/contradict statement]
s. 9(2) CEA: re. prior recorded inconsistent statement: judge can allow cross-examination on that statement
Confined to written statments
don’t have to apply to have them declared adverse
can’t cross–examine at large
can later use this statement to have witness declared adverse through 9(1) [easier to go through 9(2)]
STEPS:
Have witness going sideways—do you have written statement?
