What are the scope and limits of cross-examination?

Limits: guiding case is Lyttle

R. v. Lyttle (2004) (SCC)

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  Facts: Accused charged w/ assault after being picked out of a line-up – defence theory based on crown disclosure that the victim was beaten over drug debt and intentionally picked out the wrong attacker from the line – Crown does not call officers who mounted this theory, forcing defence to call them as witnesses and give up stat right to address jury last.
  
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  Issue: Debate over whether or not you can ask questions to pursue a theory that can’t be proven with other evidence—some suggestion that you couldn’t but this is then taken up on appeal
  
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  Held: Counsel often believe a fact to be true w/out being able to prove it w/ facts other than cross-examination.
  
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    Court clarifies by noting that can’t go on fishing expedition in cross-examination - but where have good faith basis for asking the questions then okay.
    
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    Good faith basis comes from the lawyer’s sense of the likely accuracy of the information / evidence available to him and the purpose / relevance to the case.
    
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    The right of cross must be broadly construed, but not abused.
    
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    Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their PV.
    
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    If has good faith basis for pursuing line of cross-examination then allowed to do so. Broad limits turn on good faith and ethical conduct of examining counsel. Rests on responsibility of lawyer as officer of court.
    

Duty to cross—generally no duty to cross

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  If somewhere else in your case by adducing E or arguing in submissions to jury, you are going to suggest that a witness was lying or mistaken (i.e. impeach) then you have to put this to the witness so has chance to explain - Rule in Browne v. Dunn, R. v. Dyck, R v. McNeill – rule in Browne v. Dunn is still in force (Ont CA in 2000)
  
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  Seriousness will determine consequence—mistrial in serious cases or in less serious judge may put witness back on stand
  

Rule from Brown v. Dunn

Although it is not required that every witness be cross-examined, in certain instances fairness demands that it occur: if a party is going to contradict an opponent’s witness, that party should challenge the witness on cross-examination and give them an opportunity to confess or deny.

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  Browne v. Dunn (1893) (English H.L.) – it is wrong to lie in wait – “If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him …” (in this case counsel closed with the argument that the witnesses were liars, but they had never been cross-examined).
  

Howard – not open to the examiner to put a fact, or even hypothetical fact, that which will not become a part of the case (556)

Collateral Facts Rule

Is the collateral facts rule a rule about cross-examination? – NO!!!

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  The collateral facts rule: the answer of a witness to a question concerning a collateral (i.e. side as opposed to core) matter cannot be contradicted by extrinsic evidence (i.e. evidence of any form other than out of the mouth of the witness you want to contradict).
  
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  Two leading cases: Hitchcock (1847) (English Ct. Exch.) and Krause (1986) (S.C.C.)
  
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    Collateral facts rule is a rule of practical necessity (trials have to end at some point, can’t have collateral spin-offs going on forever). So, ask how important is the matter and how long will it take, and is it worth the time to admit the impeaching evidence.
    
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    Depends on the nature of the impeaching evidence:
    

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  Evidence that relates to a substantive issue and a credibility issue.
  
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    Not collateral
    
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  Evidence that does not relate to a substantive issue in the case, but has relevance to credibility and is more than a mere contradiction.
  
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    Not collateral
    
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  Evidence that is relevant to credibility, but is a mere contradiction.
  
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    Caught by the collateral facts rule!
    

If your going to ask a question about a collateral matter, then you are stuck with the answer – cannot lead other evidence to contradict!

McCormick

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  If its important, its not collateral
  

There are three kinds of facts that meet the test of being not collateral:

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  Facts that are independently provable because they are relevant to the substantial issues in the case
  
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  Independently provable through extrinsic evidence to impeach the credibility of the witness
  
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  Lynchpin facts: not directly relevant to an issue in the case, don’t go to testimonial capacity
  
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    Cases where a witness has claimed to see something that is critical but counsel has evidence that the witness was not there at the time – whole testimony relies on their being present
    

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