Leading question: questions which directly or indirectly suggest to the witness the answer he is to give.
Leading questions are appropriate:
During cross-examination – they are the essence of cross-examination
Not permitted in direct examination (examination-in-chief), but there are exceptions:
Generally allowed when nothing important is at stake (e.g. asking their address, name, background history)
A party must not lead their witness on material points - anything relating to the material facts of the case or the credibility of the witness
Maves v. Grand Trunk Pacific Railway Co (1913) (Alta. C.A.) counsel must not ask leading questions (i.e. must not lead your own witness) with respect to important matters in dispute i.e. questions that assume facts not yet in evidence or that suggest an answer:
E.g. “what color was the light” is ok, but “the light was green wasn’t it” is not ok if the light’s color is at the core of the litigation
However, “when you saw D’s car hit P, where were you” is ok if the witness just said they saw D’s car hit P, although should not often repeat witness’s evidence like this if it was clear (i.e. seen as trying to increase influence on jury)
Should lead in some situations (but only the kind of questions where an answer is suggested) such as:
Introductory matters e.g. presenting an expert’s CV (“you have published XYZ have you not” so expert doesn’t appear too big-headed)
Where leave has been obtained to cross-examine an adverse witness
Witness is having trouble and leave is granted to lead witness
Where question will refresh memory and leave has been granted
Any other case where leave has been granted in the interests of justice
However, in exercising his discretion to allow leading questions, the trial judge should not treat the exceptions as a shopping list.
R. v. Rose (2001) (SCC)
Crown counsel examining-in-chief a person who has made a deal with the Crown to implicate the accused. Provides a transcript of leading questions.
When you read this directed examination, it reads more like a cross-examination because leading questions are the essence of cross-examination. However, leading questions are not permitted (with a few exceptions) in the examination-in-chief.
In this case there was failure on the part of the defence counsel to adequately object to leading questions.
What is the difference between present recollection revived and past recollection recorded?
Present recollection revived – e.g. witness on stand under stress forgets crucial point, need something to jog their memory, and although Rappy, US v. (1946) perhaps fanciful (a “song, a scent, a photograph, and allusion, even a past statement known to be false”) counsel can backtrack and ask a few more questions to revive witness’s memory. But if that doesn’t help, can move to show witness previous statements / documents / transcripts / photographs / etc (e.g. notes made by police officer during investigation or at discovery), and if that doesn’t work can ask for adjournment, but of course credibility going down and opposing side will remind jury of this
Contrast to using such evidence (e.g. previous statements) substantially:the refresher statement/document is not substantive so usually not considered evidence (so can’t refer to it in closing arguments for example) but often want to get it on the record (e.g. in case of appeal) as an “exhibit for identification” (which is anything that has been used/looked at in court but is not evidence i.e. has not been authenticated and has no claim as to admissibility as evidence)
R. v. Wilks (2005) (Man. CA)
The following elements must be demonstrated to establish a foundation for refreshing the recollection of a witness:
Witness know his report or other writing will refresh his memory
Witness is given and reads the pertinent part of his report or other writing
Witness states his memory has now been refreshed
Witness now testifies what he knows, without further aid of the report or other writing.
Past recollection recorded: the record or document itself is the evidence because the witness has no independent recollection of the event.
Courts impose stringent criteria to allow this kind of evidence to be introduced – most jurists view it as an exception to the hearsay rule.
No expectation that the witness would still have this recollection in memory but document made at or near the time of the event when the memory of the witness was still fresh (e.g. very detailed or routine recorder info, would actually be suspicious if witness claimed to remember it).
The past recollection must have been recorded in some reliable way
At the time of recording, it must be have been sufficient fresh and vivid to be probably accurate.
The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time.”
The original record itself. Must be used, if it is procurable.
R. v. B(KG) (1998) (Ont. CA) Court simply said that there is nothing wrong with looking at your previous summary to refresh your memory:
When a witness refreshes her memory from some external source or event, she has a present memory, albeit one that has been refreshed
How reliable and truthful her recollection is will be determined by the trier of fact
R. v. Mattis (1998) (Ont. Prov. Div.)
Notebooks of the two officers were essentially identical – led to the suspicion that one officer had simply copied the notebook from the other.
No evidence was offered as to how the notebooks could be identical
Would be unsafe to base conviction absent confirming evidence
Videotaped Statements by Children
Criminal Code s.715.1 and s.715.2:in sexual offence cases, if complainant or witness under 18 (at time of alleged offence) or with mental or physical disability that affects their ability to testify, a videotape made shortly after alleged offence of witness/complainant describing the acts in question, is admissible if adopted by the complainant/witness.
Concerns over these sections about full answer and defense, and ability to confront
R. v. L (DO) (1993) (S.C.C.) upheld constitutionality of s.715.1 (and no doubt s.715.2 would be similar).
R. v. F (C) (1997) (S.C.C.) concerned meaning of “adopt” – if witness cannot adopt the whole videotape either because they don’t remember it all or because their current recollection is now inconsistent with some of what they said in videotape, still admissible since:
Perhaps most needed in such situation since often child witnesses do forget parts of what happened
Videotape shortly after events more likely to be accurate than testimony now
Purpose of s.715.1 is to enhance truth seeking role of the courts by preserving early account and preventing further injury to child through involvement in the criminal process
