Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"

A leading question is one where the answer is suggested in the question. For example: “did you see Joe punch Steve?” The party calling the witness cannot ask leading questions. However, on cross-examination, the practice is allowed and encouraged. A common exception to the rule against leading questions in direct is when leading questions are used in order to introduce matters to the court. For example, “Your name is John Doe and you reside at 555 University Drive?” Leading questions may also be used in direct examination if they relate to non-contentious issues. (Note: it is good practice to let the Crown counsel know what the contentious issues are ahead of time in order to prevent an objection of leading a witness during trial).  

Witnesses are expected to tell the court what they personally observed, heard or did.  Hearsay is a common objection that arises because witnesses are often told things by other persons about the event.  

Hearsay is generally defined as an out of court statement, offered in evidence to prove the truth of the matter asserted. The key factor in determining if a statement is, in fact, hearsay is the purpose for which the statement is being used. For example, if the witness on the stand states “the passenger in the car told me that the light was red” this is hearsay if: it is being used to prove that the light was actually red.  It is unobjectionable and being used for a non-hearsay purpose if the colour of the light is not a contentious fact and the statement is instead being used as evidence that the passenger was alert and responsive.

There are some categorical exceptions to the hearsay rule, where evidence even though introduced for a hearsay purpose, will generally be admissible if the prerequisites for that exception are met. These are called the “traditional” exceptions to the hearsay rule and include:

# voluntary confessions;

# dying declarations;

# declarations against the interest of the declarant;

# records made in the usual course of business and in the course of a duty which are admissible under the Canada Evidence Act (for example, hospital medical files);

# declarations of a state of mind or bodily condition as evidence of the state reported, but not of its cause (for example, using the declaration “I’m cold” to establish that the person making the statement was cold, but not using it for the assumption that the weather outside was cold that day);

# statements of intention (used to increase the probability that the person who made the statement actually performed that intended action);  

# spontaneous declarations (Res Gestae - statements made so closely to the event that they are connected to it; and

# Past Recollection Recorded.

Each “Traditional” exception has its own requirements that must be met. In addition to (and as a potential exception to) the traditional common law exceptions, courts have developed the “principled approach” to determining the admissibility of hearsay. See ''R v Starr'', [2000] 2 SCR 144. This approach considers the necessity and reliability of the hearsay statement and can be used where there is no traditional hearsay exception engaged or to argue that evidence should be inadmissible despite a traditional hearsay exception.  The two requirements that must be met before hearsay evidence is admitted are:

# Necessity: whether the benefit of the evidence would be lost in its entirety if it is not entered (i.e., the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value); and

# Reliability: this test is essentially the judicial determination of what would have been gained by cross-examination. In some cases, the circumstances in which the statement was made suggest its trustworthiness and reduce the danger of admitting evidence without an opportunity for cross-examination.

For a thorough discussion of the rules of hearsay admissibility, see Watt’s Manual of Criminal Evidence and ''R v Khelawon'', [2006] 2 SCR 787.  

When people witness behaviour in everyday life they often reach conclusions regarding why they think that other person was behaving in that manner.  Witnesses are expected to tell the court what they saw a person say and not to speculate as to why they think that person did what they did.  For example, if one sees someone jumping up and down and swatting at the air one may speculate that the person is being bothered by an insect.  Such speculation is not proper evidence unless the witness also saw or heard the insect.     

As a rule, witnesses should not make any inferences or state their opinion about what that evidence proves in their testimony (for example, “I think Steve was going grocery shopping because I saw him with an empty fabric grocery bag”).  Instead, the witness should simply state “I saw Steve and, in his hands, he was holding an empty fabric grocery bag.”  Conclusions drawn from what is seen or heard is for the trier of fact to draw not the witness to opine.  There are often exceptions to these exceptions.  For example, although generally the court does not permit non-expert opinion evidence, someone who is intimately familiar with a person’s appearance can in certain situations provide evidence that they recognise that person from surveillance photographs or video.