What is direct examination?

Your witnesses, when they take stand, will swear, affirm, or promise to tell the truth. Ask open-ended questions that start with who, what, where, when, why, how, or please describe. Don’t ask leading questions that tell the witness what to say. Keep your questions specific, simple, and clear. Don’t ask for their opinion unless they are an expert witness.

What is cross examination?

The purpose of cross-examination is to test how true and reliable the witness’ answers are. Ask leading questions that tell the witness what to say. Ask questions to show the witness is not telling the truth.

What is re-examination?

The purpose of re-examination is to make clear anything that came up during the cross-examination, without bringing up any new issues. 

What are objections?

During the questioning of a witness, a party can object to questions being asked or to documents being given to the court. 

The party must provide the judge with the reason he/she should not hear the evidence. 

For example, if the witness is asked:

• leading questions on a direct examination
• for their opinion and they are not an expert witness
• questions that are not relevant
• questions that are repetitive

What is the most important evidence rule?

One of the most important of these rules is the rule in Browne v. Dunn. This is a principle that every trial lawyer must understand and apply carefully.  It is a rule that goes to the heart of fairness and credibility at trial. It is not merely a procedural technicality. It is a cornerstone of modern Canadian trial practice, including in Ontario family courts. The rule can be stated simply:

If you intend to later challenge or contradict a witness’s evidence, you must put your contradictory evidence to them during cross-examination and give them a fair chance to respond.

Fairness demands that the witness has the chance to address the contradiction while still in the witness box. A trial is not a game of ambush. Witnesses are entitled to respond to allegations or contradictory evidence while they are on the stand. 

What are the consequences of not properly giving witness chance to address the contradiction?

The court may:

• Place less weight on the contradictory evidence when it is later presented;

• Prohibit a party from making submissions based on the contradiction; or

• Draw an adverse inference against the party who failed to confront the witness when they were on the stand.

How to handle prior statements?

If what the witness said in the earlier statement or sworn evidence is different than what he or she is saying at trial, you may cross-examine the witness on the prior statement. 

If what the witness said prior to trial was favourable to your case, you may also ask about that.  However, you must follow a procedure to do this:

Firstly, you must ask the witness if they recall making the statement, swearing the document or if they recall attending for questioning and answering questions under oath.  Next, read the prior statement in the document or the questions and answers from the transcript to the witness.  Ask the witness to confirm that the statement was made under oath and then ask if he or she recalls saying it, and if what they said was true. If the witness pronounces the earlier statement was true, the earlier statement is evidence for the truth of that statement.

If the witness says the earlier statement is not true, then the earlier statement may be used only to assess the credibility of the witness, by showing that the witness said something different in the past.