Testifying: examination, cross-examination and re-examination

Okeke was on the stand for an hour and forty minutes. Desjardins obtained the court's recording of his testimony, with the court's permission, and played parts of it to the class twice. In one exchange, Marchetti held up the synopsis. 'You wrote that a pat-down search revealed a pry bar and stolen property in the backpack. That's not what happened, is it?' Okeke said, 'No. That sentence is wrong. I patted down his clothing and found nothing. I found the pry bar when I opened the bag afterward. I wrote the synopsis at about five that morning and I compressed it. I corrected it in my supplementary report in May, after I watched the video.' Marchetti asked, 'So you got it wrong the first time.' 'Yes,' he said. She moved on to something else.

Desjardins pauses the video. 'Count the words in his answer,' he says. 'Every one of them is true, it answers exactly what she asked, it explains why without making excuses, and it tells the court the mistake was already corrected. That is how you survive a cross-examination about your own error. There is nothing left for her to do with it.' This lesson is about how testimony works and how to give it well.

Taking the stand

Every witness must promise to tell the truth before testifying, by swearing an oath on a religious text or by making a solemn affirmation, which has the same legal effect. Sections 13 to 15 of the Canada Evidence Act govern oaths and affirmations, and section 16 sets out special rules for witnesses whose capacity is challenged. The witness then answers questions from the lawyers. The judge may also ask questions, usually to clarify. The witness does not make a speech. Officers sometimes ask whether they may give their evidence as a narrative, telling the story in order; some judges allow this for a short time on uncontroversial matters, but most testimony is given in response to specific questions.

Examination in chief

The party that calls a witness examines them first, in what is called examination in chief. The purpose is to bring out the witness's evidence in a clear, logical order. The examining lawyer generally may not ask leading questions, meaning questions that suggest the answer, such as 'The man was wearing a grey hoodie, wasn't he?', on matters in dispute. Instead, the lawyer asks open questions: 'What was he wearing?' The rule exists because the evidence should come from the witness, not from the lawyer. Leading questions are allowed on preliminary or undisputed matters, such as the witness's name and job, and the judge can allow them in other situations, such as with a hostile witness. The rule comes from the common law.

Kwan's examination of Okeke followed the night in order: his shift, the call, his arrival at the pharmacy, what Malhotra was doing, the broadcast description, the drive, what he saw on Crescent Street, the stop, the pat-down, the bag, the arrest, the warnings. Kwan did not avoid the bag. He asked Okeke to explain exactly what he did and why. Kwan told the class later that he always brings out the weaknesses in his own witnesses' evidence in chief, because it is far better for the court to hear a problem from the witness, calmly, than to have the defence reveal it in cross-examination as if it had been hidden. Okeke described opening the bag and said, in chief, what he later repeated in cross: that he wanted to see what was in it before he decided whether to arrest.

Refreshing memory

Witnesses, especially officers, often need to consult notes to remember details. The law allows a witness to refresh their memory from a document, but distinguishes two situations. In the first, the document revives the witness's memory, and the witness then testifies from that revived memory; the document itself is not evidence. In the second, the witness has no memory even after reading the document, but can say the document was made accurately at the time; in that case, the document itself may be admitted as a record of past recollection. In R. v. Fliss (2002), the Supreme Court of Canada described these two situations. For past recollection recorded, the document must have been made or verified by the witness at or near the time of the event, when the memory was fresh, and the witness must be able to vouch for its accuracy. Most courts allow officers to refer to their notes while testifying, often after confirming when they were made and that they have not been altered. The defence is entitled to see any notes the officer uses.

Desjardins points out that this is why note-taking matters so much. An officer who made notes at the time, in a bound notebook, and can say they have not been changed, can rely on them for every time, plate number and quotation. An officer whose notes were written days later, or who cannot explain a gap or an added line, may find the court will not let them use the notes at all, or will give them little weight. Okeke asked permission to refer to his notebook, explained that he had made the notes between 04:40 and 05:20 on March 14, and confirmed that nothing had been added since. Marchetti did not object, but she asked to see the notebook and checked the page numbers.

Cross-examination

After examination in chief, the other party may cross-examine. Cross-examination has two main purposes: to test the witness's evidence, showing that it is unreliable, mistaken or untrue, and to bring out facts that help the cross-examining party's case. Leading questions are allowed and usually preferred. A skilled cross-examiner asks short, closed questions designed to get a yes or no, and builds a point one step at a time. Common lines of attack include inconsistencies between the witness's testimony and their notes, reports or earlier testimony; omissions, such as a detail not in the notes; the witness's opportunity to observe, such as distance, lighting and time; bias or interest, including an officer's interest in a successful prosecution; and the reasonableness of the officer's actions.

Sections 10 and 11 of the Canada Evidence Act govern cross-examination on a witness's prior written and oral statements; before the statement can be used to contradict the witness, their attention must be drawn to it and they must be given a chance to explain. The rule in Browne v. Dunn, applied in Canadian courts, requires a cross-examining party who intends to contradict a witness with other evidence to put the contradiction to the witness first, so they can respond. Marchetti put each of her points to Okeke directly: the synopsis, the time in his notes, the order of events, his statement that he wanted to see what was in the bag. He had a chance to explain each one, and he did.

# Questions and answers from part of Okeke's cross-examination, tallied by type
exchanges = [
    ("leading", "yes"), ("leading", "yes"), ("leading", "no, with explanation"),
    ("leading", "yes"), ("open", "explanation"), ("leading", "I don't know"),
    ("leading", "yes"), ("leading", "no"), ("leading", "yes"), ("leading", "I don't remember"),
    ("leading", "yes"), ("open", "explanation"), ("leading", "yes"), ("leading", "yes"),
]
from collections import Counter
q = Counter(t for t, _ in exchanges)
a = Counter(r for _, r in exchanges)
print("questions:", len(exchanges), dict(q))
print("answers:", dict(a))
honest_limits = a["I don't know"] + a["I don't remember"]
print("times the officer admitted the limits of his knowledge:", honest_limits)

questions: 14 {'leading': 12, 'open': 2}
answers: {'yes': 8, 'no, with explanation': 1, 'explanation': 2, "I don't know": 1, 'no': 1, "I don't remember": 1}
times the officer admitted the limits of his knowledge: 2

The tally shows what good cross-examination looks like from the receiving end. Most questions were leading and most answers were short. Twice Okeke said he did not know or did not remember. The first was when Marchetti asked how fast Brennan had been riding before Okeke saw him; Okeke had not seen him before then. The second was when she asked what Brennan had said when the cuffs went on; Okeke did not remember anything being said, and the video confirmed nothing was. Desjardins tells the class that those two answers made the yes answers more believable. A witness who never says 'I don't know' is either remarkable or guessing, and courts know which is more common.

Answering questions well

Desjardins gives the class a short set of rules that he says apply to every witness, but especially to police officers, who testify often and are expected to be good at it.

Desjardins adds a point about bias. Defence lawyers will often suggest that an officer wants a conviction. The best response is not to deny having any view, which is not believable, but to show through the testimony itself that the officer reports facts accurately whichever way they cut. Okeke testified, without being asked by Kwan, that he had not noticed the logo at the time. That fact helped the defence on the search, and his volunteering it in chief was part of why the judge trusted him. Volunteering a helpful fact for the other side is very different from volunteering inadmissible matters; the first shows fairness, the second causes mistrials. When in doubt, an officer should simply answer the question.

Re-examination

After cross-examination, the party who called the witness may re-examine, usually only on matters raised in cross-examination that need clarifying. Re-examination is not a chance to repeat the examination in chief or to raise new topics. Kwan asked Okeke two questions in re-examination. First: 'Apart from the time and the sentence about the pat-down, is there anything in your notes or synopsis that the video shows to be wrong?' Okeke said no. Second: 'When did you first see the hoodie Mr. Brennan was wearing?' Okeke said he saw it in his headlights when he pulled up, before he got out of the car, and that he could see it was grey. Those two answers limited the damage from cross-examination and reminded the court that the observation of the hoodie came before any search.

Civilian witnesses

Officers are not the only witnesses, and they can help civilian witnesses through the process, within proper limits. Mrs. Shaw was nervous about testifying, and the Victim/Witness Assistance Program gave her a tour of a courtroom the week before. Kwan met her to review her 911 call and her statement. At trial, she could not remember the logo, and Kwan did not try to lead her toward it; the recording was admitted instead, as lesson 4 explained. In cross-examination, Marchetti asked her about her eyesight and the lighting, and Mrs. Shaw said frankly that she wore glasses for distance and had them on, and that the lane was lit by a light over the laundromat's back door. Desjardins tells the class that officers must never suggest to a civilian witness what they should say, and must not discuss other witnesses' evidence with them. They can explain the process, help with practical arrangements, and connect witnesses with support services.