Limits to cross-examination

As cross-examiner, you can (and should) be vigorous and thorough. It is not "abusive" to challenge a witness on unpleasant things, for example, their biases or their criminal record, as long as your question is asked in good faith and is not intended to mislead the witness. But there are limits.

In R v Henderson, the Ontario Court of Appeal overturned a conviction obtained following a trial in which the Crown had asked improper and unfair questions during cross-examination. Four instances of unlawful examining were identified. In the first, the Crown asked the witness (the defendant) to comment on another witness's (the complainant's) credibility. The complainant had been involved with spray painting and other acts in which sexual assault had been alleged. One example of the Crown's questions in this line:

If what [the complainant] described in her evidence before this jury under cross-examination is true, then all these subsequent events that have been following you; the phone calls, the spray painting and the graffiti, are at least understandable, are they not?

The Court of Appeal

Crown counsel's questioning required the appellant to provide an alternate explanation for the complainant's behaviour that was not premised on his guilt. Such an explanation would have required the appellant to either comment upon the complainant's credibility or to give an opinion that he was clearly not qualified to give, explaining why her conduct was inconsistent with someone who had been sexually assaulted.

It is improper to ask a witness to comment on another witness's credibility. This is for the trier of fact (i.e. the judge or jury) to decide on. It is also improper to ask a witness to explain someone's behaviour. As a rule, a witness can only testify to what they have witnessed. Explaining behaviour and other forms of evidence is left to expert witnesses, something the Crown was surely aware of. In the second instance, the crown referred to the defendant's reputation in the community:

And I take it, certainly from your attitude today, that you were probably upset and to a certain extent, rightfully so, that this public opinion war was going, is that correct?

The defendant had not put his character in issue during the examination-in-chief. For example, he hadn't said something like, "I'm not the sort of person who would do something like that." It was improper for the Crown, then, to refer to his reputation in the community, which speaks to character. In the third problematic line, the crown demanded that the witness explain why his counsel had not questioned the complainant about a particular detail.

[Defence counsel] never suggested to her that she hadn't been crying, did he? [Defence counsel] never suggested to any of the other witnesses who saw her running in, that she wasn't crying and upset, did he?

The Court of Appeal

The failure of defence counsel to cross-examine the complainant or the Crown witnesses on these issues did not constitute a breach of the rule in Browne v. Dunn [briefly, the rule that a witness must be given an opportunity to address a claim when it is made]. It was clear from defence counsel's extensive cross-examination of the complainant that the appellant was alleging an account of events which contradicted the complainant's. The defence was not required to put the Crown on notice of every detail that the defence did not accept: see R. v. Verney. As such, Crown counsel's questions implying that the appellant had somehow acted improperly in his defence were unfair. Furthermore, Crown counsel's suggestions that the appellant was responsible for the tactical decisions of his trial counsel to not cross-examine the Crown witnesses were unfair and prejudicial.

The fourth instance involved an attempt to embarrass the defendant in front of the jury by implying that he knew better when he attempted to enter a plea of "innocent," instead of the correct "not guilty," at the start of the trial. As Joseph A. Neuberger and Leora Shemesh recently explained in a presentation to the Ontario Paralegal Association:

Although the principles [identified above] apply with greater force to the cross-examination of an accused (where there is a heightened interest in protecting the fairness of the trial) the principles are, nevertheless, of universal application:

i. Cross-examination should not be insulting or abusive

ii. It is improper to ask questions in cross-examination that counsel knows the witness is unable to answer

iii. Counsel’s personal opinion and argument has no place in a cross-examination

iv. A witness may not be cross-examined about privileged communications

v. A witness must not be asked to comment on the credibility of another witness, and

vi. It is improper to threaten a witness with a prosecution for perjury.

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