QUICK TAKEAWAY
Testifying in a Trial: Testimony is at the heart of every criminal court trial, playing an essential part of proving the guilt or innocence of an accused. There are two main stages of testimony, the examination-in-chief and the cross-examination. A witness is bound by oath or affirmation to tell the truth while testifying and can be found guilty of perjury for making a false statement. Perjury is considered a serious crime in Canada with a maximum prison sentence of 14 years. The rules of evidence are governed by the Canada Evidence Act although each province and territory has its own evidence act that sets out a process for the taking of evidence in court or by way of documents.
Table of Contents:
What is Testimony?
Giving testimony means you must take the witness stand and tell the judge or juryCitizens that decide on a person's guilt at trial exactly what you saw or any information you have about the crime. Before you testify, the court clerk will ask if you want to affirm to tell the truth or swear a religious oath on the Bible.
There are four types of evidence – real, demonstrative, documentary and testimonial evidence. This evidence is regulated by the Canada Evidence Act, which was first passed in 1893. This act applies to criminal matters, federal courts and civil matters where the federal government has jurisdiction. Each province and territory also has its own evidence act.
Testimony can be given by an ordinary witnessSomeone who gives evidence in a court proceeding or an expert witnessA person with special knowledge about a crime. An ordinary witness is someone who saw or heard something about the offence. They answer questions about the event in question but do not give their opinion about what occurred.
As the name indicates, an expert witness is a person such as a doctor or forensic accountant with particular expertise about an element of the crime. These witnesses interpret the facts of the case and share their opinion with the court.
The judge typically makes an exclusion order at the beginning of the trial, which means witnesses are not allowed in court during other people’s testimony. Once you have testified, you are permitted to sit in court to hear the rest of the trial unless there is a possibility that you will be recalled to the witness stand at a later time.
Witnesses are not permitted to speak to anyone about their testimony until the trial ends. When you appear in court, you are required to stay until the judge dismisses you. It is not possible to predict how long you will need to be in court. It will depend on what and how much you witnessed and the extent of the questioning by the Crown and the defence.
If you are a witness at an accused person’s trial, the Charter of Rights and Freedoms guarantees you the right not to have your evidence used against you in any proceeding.
What is a Subpoena?
If you witness a crime or are a victim of one, you would typically receive a subpoena or a witness summons ordering you to attend court to testify. The subpoena will list the date of the hearing and who is calling you to court — the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown or the defence attorney.
Before being subpoenaed, the Crown or defence may ask you what you know about the crime. You are not obligated to talk to them at this time. However, if you have been summoned to court, you must testify about everything you witnessed.
It is important to remember that your attendance is not voluntary. If you fail to show up for court, you could be arrested. If you attend and refuse to answer the questions put to you by the prosecution or the defence, you could be held in contempt of court by the presiding judge.
If you have a legitimate reason for not attending court, you will need to inform the Crown, who is the only one who can excuse you from attending. You can also contact the Crown if you believe testifying will jeopardize your safety.
If necessary, you may be subpoenaed to give evidence at a preliminary hearing and a trial.
If you receive a court summons, your employer must give you the necessary time off. However, they are not required to pay you in your absence.
What is Examination-In-Chief?
Whoever subpoenaed you to testify will be the first one to question you. This is known as examination-in-chief or direct examination.
During the examination, a lawyer is not permitted to ask a leading question A question that encourages the desired answer or one where the answer is suggested in the query. An example of a leading question would be "Your name is Jane Doe, is it?" instead of "What is your name?"
The purpose of examination-in-chief is to prove the essential elements of one side's case through the facts, whether the Crown or the defence. The lawyer's ultimate goal is to establish the witness's credibility to bolster their case. They attempt to answer the who, what, where, when, why and how the particular event occurred to demonstrate their assertions and assist the judge or jury in reaching a verdict that is favourable to their side.
The questions put to the witness must be relevant to the matters at issue. They must limit their answers to what they saw or heard. Also, unless the witness has expertise in a particular field relevant to the case, they are not permitted to offer opinions. Witnesses are also not allowed to read from a written statement when testifying, although they can refer to documents to refresh their memory.
Once examination-in-chief has been completed, the other side has the chance to cross-examine the witness.
What is Cross-Examination?
Cross-examination is conducted to elicit witnesses' answers to test their evidence's accuracy or honesty or bring out facts that may help the other side. It has been said that examination-in-chief is conducted to hear from the witness, while the purpose of the cross-examination is to hear from the lawyer in an attempt to strengthen the assertions of their case. A lawyer on cross is permitted to ask leading questions and will attempt to attack the witness's reliability. They may attempt to test a witness's memory or show a bias. The lawyer will try to get the witness to agree with the facts supporting their case.
It should be noted that cross-examination does not always take place. A lawyer may feel the witness has not said anything harmful to their case. They may also believe that further questioning will only reinforce the strength of the witness's testimony.
What is Perjury?
Simply stated, if you give false evidence with the intent to mislead a judge or a jury, you have committed perjury, which is an offence under s.131 (1) of the Criminal Code. This crime is dealt with harshly because giving false evidence or making a false statement can result in a miscarriage of justice. You can face a maximum sentence of 14 years in jail if convicted.
To be convicted of perjury, it must be proven you had the mens rea, or the intent to mislead the court. You must be aware you are making a false claim and had the intention to mislead. You cannot be convicted if you reasonably believed your statement to be true when you gave it. Also, a true statement, even if it is misleading or nonresponsive, is not considered perjury. If you are giving testimony and you realize you have made an error, you can ask the court if you can correct your mistake.
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Expert witness
Someone with special knowledge about an element of the crime who can assist the court through the provision of an independent and unbiased opinion.
Jury
Canadian citizens over the age of 18 called to hear evidence and render a verdict or recommendation in a coroner’s inquest or a civil or criminal trial.
Leading question
A question that prompts or encourages the desired answer. They are allowed in cross-examination but not in examination-in-chief.
Witness
Someone who gives evidence in a court proceeding. Witnesses usually possess knowledge or proof that is relevant to the facts of a case and they convey their relevant knowledge under oath.
