Law 309 Evidence Introduction 5

Supporting Credibility

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  Leading Evidence: Party may not ask questions or lead evidence solely to bolster the credibility own witness (little intros are generally okay)
  
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  Rule against oath-helping: Presumption today is that when a competent witness swears and oath etc. that he or she is credible and so prohibit calling witnesses to speak to another’s credibility
  

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  May not lead evidence of a witnesses prior consistent statements – time consuming, redundant, unnecessary
  
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  Prior consistent statement = must be consistent with previous testimony – made as a witness on the stand.
  

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  Recent fabrication (to rebut):
  

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  If the other side attacks the credibility by stating you fabricated this evidence after some point at which the event actually took place then can admit (allowed to rebut allegation of recent fabrication)—must be recent – i.e. if accused suggests that witness fabricating from outset then prior statement inadmissible
  
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    Eg. At trial witness says attacker was blonde but not included in police statement. Crown can introduce E that prior to police statement the witness said the attacker was blonde to show that you had not fabricated a statement after the police statement.
    
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  Not oath-helping rather is offered to rebut the allegation of recent fabrication.
  
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    Express Assertion: why wasn’t this in your police report
    
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    Implicit Assertion: any time the other side suggests that your witness made their testimony up  respond with a PCS to show it pre-existed the time they suggest where witness fabricated E (come up when inference is raised in jury’s mind)
    

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  Prior identification:
  

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  Quality of identification – when witness identifies accused in court, evidence that the witness previously identified the accused is admissible to allow both parties to explore the reliability of the identification
  

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  Recent complaint:
  
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    Doctrine of Recent Complaint: Old CL rule applied to sexual offence cases —prior consistent statement of complainants in sexual assaults used to be automatically admissible because there used to be a requirement for recent complaints.
    

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  Done away w/ in CC s. 275 “The rules relating to E of recent complaint are hereby abrogated:
  
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  This does not mean though that the complainant can’t be cross-examined on the delayed complaint. Not uncommon for an accused to point to a delay to suggest that the complainant concocted the story.
  
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  So still have the application of broader recent fabrication rules and thus the situation is not much different since complainant can still be asked about this. Crown can respond w/ prior consistent statement
  

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  Narrative (vague)
  

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  Prior consistent statements of a witness are admissible where they form part of the witness’s “narrative”
  
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  F(JE) – specifically aimed at assault and abuse cases – complaints not admissible for truth of contents but for fact of their existence (and so not considered hearsay which requires E to be adduced for truth) –
  
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  Also, narrative is considered probative
  

Use of Experts

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  Cannot call expert to testify that in his opinion the witness is telling the truth
  
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  But can call expert to testify where not considered oath-helping — so evidence given that is relevant to credibility not about credibility
  
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  No longer oath-helping but providing finder of fact with information otherwise outside their normal experience and so is necessary for them to make a sound evaluation
  

Marquard Distinction

There are two forms of possible expert E:

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  Experts cannot give evidence about credibility – nothing that amounts to “I believe this person is telling the truth”
  
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    E that draws a conclusion about your witnesses ultimate credibility is not admissible - Kyselka
    
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  But can give evidence relevant to credibility – may testify to general propositions relevant to the ability of the accused to give testimony
  

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  Evidence that is on human conduct and particular psychological and physical factors that are helpful and necessary in the jury’s assessment of credibility is admissible - Marquard
  
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    Has to be a qualified expert and judge has to give a jury charge that credibility at end of day is their responsibility — do not be unduly influenced by expert E)
    

So when faced with problem ask: is this about human behaviour OR about this witness?
R v. Kyselka (1962)

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  Facts: 3 Accused charged w/ raping young girl. Expert testified about the 16 yr old complainant’s mental capacity and issue of consent.
  
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  Issue: Crown asks about the ability to fabricate stories. Expert testifies that not imaginative enough to concoct stories and so evidence on credibility – likely a truthful person
  
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  Held: This was excluded but the scenario in this case is unclear – determined to be evidence about credibility because the jury could assess this issue on own—so usurping jury’s function and likely to confuse if allow such oath-helping evidence in.
  

R v. Marquard (1993)

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  Kid burned by nana case. Expert E about the fact that the child’s recollection/story of the event changed. Expert testifies that children frequently tell lies initially in such circumstances and information about why a child might lie to hospital staff on its own is admissible (setting context that jury may not necessarily know).
  

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  Evidence would have been admissible if had ended here, but continues to describe the specific case and goes too far (gives her opinion about credibility).
  
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  This case gives a restatement about the general principles  “it is an axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion (may be too readily accepted as convenient way for jury to resolve difficult issue) unless testimony about feature’s of the witness’s evidence that are beyond lay person’s ability (put in context)
  

Marquard restates rules on expert evidence:

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  The witness must be an expert in the particular area of human conduct in Q
  
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  The evidence must be of the sort that the jury needs because the problem is beyond their ordinary experience
  
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  Jury must be carefully instructed as to its function and duty in making the final decision w/out being unduly influenced by the expert nature of the evidence
  

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