There are many different ways which bias of the witness may be used to impeach them. There are not set criteria for establishing bias, but they may include examples such as family or employment relationship or bribery to testify falsely.
Once bias is established, since such feeling betray emotional partiality that may impair the witness’s ability to testify, evidence of bias is notcollateral, but rather may be elicited in cross-examination or by extrinsic proof.
If it is intended to impeach the witness by evidence of his prior conduct illustrating bias, it should be preceded by a cross-examination of the witness on this issue.
R. v. Ellard (2003) (BCCA)
Facts: Kelly Ellard was charged with the drowning death of Reena Virk. Ellard admitted to being involved in the swarming that preceded her death, but not the killing. Denied admitting being involved in the killings to other witness. In cross-examination, Ellard was asked to provide a reason why the witnesses would lie about the admissions.
Held: Cross-examination held to be unfair because it shifted the burden of proof. A new trial was ordered.
Character of Witnesses
Historically, you could ask a witness for their opinion on the credibility of another witness. However, this has become more restrictive over time.
Rowton Rule:the only evidence of bad character that is admissible from character witnesses is evidence of general reputation – not simply evidence of personal opinion
Judges have discretion not to permit personal opinion on credibility to prevent “legal clutter” in the courtroom - might result in each side simply marching in a line of witnesses willing to offer their personal opinion on the lack of credibility of the opposing witness.
May prevent such evidence on the basis of normally trifling value in comparison to the time take up to hear it.
Do you know the reputation of the witness as to the truth and veracity in the community in which the witness resides? If yes
Is that reputation good or bad?
From that reputation, would you believe the witness on oath?
Judge has the discretion to allow questions 1 + 2, but shouldn’t generally allow question 3 – becomes a matter of personal opinion
Accused as a Witness
Some courts have recognized that the accused who chooses to become a witness exposes himself to a greater possibility of prejudice than an ordinary witness.
The accused has special protections as a witness:
Davison – have to bear in mind the dual nature of the accused as a witness – both the witness and the accused.
As the accused, they are protected by an underlying policy rule against the introduction of evidence that shows them to be a person of bad character
As a witness, their credibility is subject to attack under cross-examination
Limitations are imposed with respect to the cross-examination of an accused which do not apply to an ordinary witness
Policy rule which protects an accused against attack on their character lest the jury be diverted from the issue at hand, is not wholly subordinated by the rule which permits an accused to take the stand and be cross-examined on credibility.
Different rules for regular witness and the accused as witness:
Ordinary witness: open to cross-examination at large as to credibility
Accused as witness: aside from questions regarding previous convictions, should not be cross-examined with regard to previous misconduct or unsavoury associations unrelated to the charge
However, cross-examination relevant to prove the falsity of the accused’s evidence doesn’t fall within this ban.
Titus- Cannot ask the accused about crimes for which they were not charged or crimes for which they are currently awaiting trial.
CEA s. 12 only allows cross-examination on prior convictions.
However, its open to ask witnesses that are NOT the accused about any criminal activity for which they may be awaiting trial.
Hutton v. Way (1997) (Ont. CA)
Civil cases demonstrating that the criminal record of the plaintiff should not have been put into evidence.
The improper admission of the criminal record and the charge of sexual assault may well have coloured the quantum of damages awarded.
R. v. Jones (1988) (Ont. CA)
The appellant had not led any evidence of good character on his own behalf and thus had not put his character in issue.
Improper for the prosecution to cross-examine him with respect to bad character
Defects in the Capacity of a Witness
The cross-examiner is always entitled, subject to the trial judges discretion, to attempt impeachment by questioning the witness’s general capacity to observe, recollect and communicate.
When a witness, through physical or mental disease or abnormality, is not capable of giving a true or reliable account, an expert witness should be able to give evidence about the existence of this defect in capacity.
R. v. Toohey (1962) (English HL)
Allegation of assault against a gang of you boys by another boy. Question of whether the boy had actually been assaulted or whether he suffered from a mental defect that caused unusual hysteria and lead him to believe in events that may not have happened.
Allowed expert evidence about the testimonial capacity of the witness.
Can lead expert evidence to show that a witness lack a particular testimonial capacity, or at least an impaired testimonial capacity.
