1. Rules on the Examiner in Chief 1: The Rule Against Oath Helping/Bolstering

2. The Rule Prevents questions by an examiner in chief which tend merely to support the oath (ie. credibility) of their own witness prior to challenge.Prevents questions by an examiner in chief which tend merely to support the oath (ie. credibility) of their own witness prior to challenge. The honoring of one’s oath is presumed prior to challenge by the party(ies) in opposition.The honoring of one’s oath is presumed prior to challenge by the party(ies) in opposition.

3. The Rule - Exception Once credibility is made relevant due to attack by the party opposite in interest, the Examiner in Chief may rehabilitate their own witness through questions in re-examination, or through the evidence of other witnesses.Once credibility is made relevant due to attack by the party opposite in interest, the Examiner in Chief may rehabilitate their own witness through questions in re-examination, or through the evidence of other witnesses.

4. Therefore Questioning on Examination in Chief is initially restricted to the who/what/where/when/why type questions.Questioning on Examination in Chief is initially restricted to the who/what/where/when/why type questions. IOW evidence directed towards the facts-in- issue.IOW evidence directed towards the facts-in- issue. While one is allowed to “introduce” a witness to the Court through questioning, there is a limit.While one is allowed to “introduce” a witness to the Court through questioning, there is a limit.

5. Therefore The question is “what happened to bring you to Court today.”The question is “what happened to bring you to Court today.” It is not, “and is everything you told us today the truth?”It is not, “and is everything you told us today the truth?” It is not, “as a Minister, are you allowed to tell a lie?”It is not, “as a Minister, are you allowed to tell a lie?” It is not, “Do you teach your children to lie or to tell the truth?”It is not, “Do you teach your children to lie or to tell the truth?”

6. In Those Cases, the Proper Objection by the Opponent is … “oath helping”, “self-serving evidence”“oath helping”, “self-serving evidence” This should be the objection anytime that the witness strays into areas outside the facts-in- issue, matters extraneous to the proceeding that do nothing but tend to portray them in a favorable light. ie. “let me ask you about your charitable endeavours.”This should be the objection anytime that the witness strays into areas outside the facts-in- issue, matters extraneous to the proceeding that do nothing but tend to portray them in a favorable light. ie. “let me ask you about your charitable endeavours.”

7. But, Once Attacked … Rehabilitation is allowed.Rehabilitation is allowed. The suggestion, even implied, by the cross-examiner that your witness is lying due to friendship or other such motives (totally acceptable areas for cross- examination) allows the examiner-in-chief to examine on these issues in re-direct, for example.The suggestion, even implied, by the cross-examiner that your witness is lying due to friendship or other such motives (totally acceptable areas for cross- examination) allows the examiner-in-chief to examine on these issues in re-direct, for example. The question, “And so, my friend has suggested this is all a concoction for your best friend, is anything that you have said today anything other than the truth?”, becomes allowable.The question, “And so, my friend has suggested this is all a concoction for your best friend, is anything that you have said today anything other than the truth?”, becomes allowable.

8. Objection When the cross-examiner opponent objects to this line of questioning as oath-helping, the answer is simple: having been raised it is open for evidence thereon.When the cross-examiner opponent objects to this line of questioning as oath-helping, the answer is simple: having been raised it is open for evidence thereon.

9. PCS (Prior Consistent Statements) The Rule Against Oath Helping also prevents the introduction (through Examiner in Chief) of PCS’s of their own witness.The Rule Against Oath Helping also prevents the introduction (through Examiner in Chief) of PCS’s of their own witness. Again, prior to challenge relevant thereto.Again, prior to challenge relevant thereto.

10. Prior Consistent Statements (PCS) A third stage admissibility rule.A third stage admissibility rule.

11. General Rule A previous statement which is purportedly consistent with the witness’ testimony is inadmissible to confirm such testimony.A previous statement which is purportedly consistent with the witness’ testimony is inadmissible to confirm such testimony.

12. Rationale The fact that a witness has previously made a statement consistent with their current testimony does not render the current testimony more truthful.The fact that a witness has previously made a statement consistent with their current testimony does not render the current testimony more truthful. The rule against previous consistent statements is based on the presumption that such statements have no evidentiary value and as such are irrelevant.The rule against previous consistent statements is based on the presumption that such statements have no evidentiary value and as such are irrelevant.

13. PCS The rule against PCS is part of the general rule against oath helping, or bolstering evidence.The rule against PCS is part of the general rule against oath helping, or bolstering evidence. The rule is based on the premise that such statements are likely to be self-serving and therefore unreliable.The rule is based on the premise that such statements are likely to be self-serving and therefore unreliable.

14. The rule includes a prohibition on the witness, in examination in chief, being asked about his own, PCS, and asking other witnesses to repeat same.The rule includes a prohibition on the witness, in examination in chief, being asked about his own, PCS, and asking other witnesses to repeat same. IOW, the source does not matter, any PCS, no matter who they are called through, are presumptively in admissible.IOW, the source does not matter, any PCS, no matter who they are called through, are presumptively in admissible.

15. Form of Statement The form of statement, written or oral, does not matter to the effect of the rule.The form of statement, written or oral, does not matter to the effect of the rule.

16. Exceptions Like any rule of evidence, there are common law and statutory exceptions.Like any rule of evidence, there are common law and statutory exceptions.

17. Statutory Exception S. 715.1 of the Criminal Code allows videotapes of complainants, made within a reasonable time of the events at issue (for listed sexual offences), describing the acts complained of, assuming the complainant was under 18 at the time of the offence, to be admitted in evidence POTOC, if the witness takes the stand and adopts the contents of the tapeS. 715.1 of the Criminal Code allows videotapes of complainants, made within a reasonable time of the events at issue (for listed sexual offences), describing the acts complained of, assuming the complainant was under 18 at the time of the offence, to be admitted in evidence POTOC, if the witness takes the stand and adopts the contents of the tape

18. It is an exception to the PCS rule, because they are allowed both to testify to what happened to them, and the TOF is allowed to watch what is essentially a PCS.It is an exception to the PCS rule, because they are allowed both to testify to what happened to them, and the TOF is allowed to watch what is essentially a PCS. Both their testimony, and their tape, are admissible POTOC, even if contradictory. The TOF can accept all, some, or none of either.Both their testimony, and their tape, are admissible POTOC, even if contradictory. The TOF can accept all, some, or none of either.

19. Common Law Exceptions (1)Rebutting Allegations of Recent Fabrication. Remember what we have said about the rule against oath-helping in general. A person is assumed to honor their oath until challenged. Questions not admissible prior to challenge/impeachment of a witness, now become admissible because of the nature of the challenge by the cross-examiner.

20. Recent Fabrication The exception makes sense when you think about it this way. PCS are deemed irrelevant as the fact that a witness said the same thing before court does not make it more true when they repeat it on the stand. But where the nature of the challenge on cross (direct or implied) is that the witness has “recently” made their story up, the PCS takes on a new relevance. The PCS does not go in to make the present testimony “more true” but rather to rebut the suggestion on cross that it was recently fabricated.The exception makes sense when you think about it this way. PCS are deemed irrelevant as the fact that a witness said the same thing before court does not make it more true when they repeat it on the stand. But where the nature of the challenge on cross (direct or implied) is that the witness has “recently” made their story up, the PCS takes on a new relevance. The PCS does not go in to make the present testimony “more true” but rather to rebut the suggestion on cross that it was recently fabricated.

21. Therefore, on the allegation (express or implied) of recent fabrication, the TOL will allow the witness to be rehabilitated through the calling of evidence regarding a PCS (through this witness on re-examination, for example, or another direct witness to the PCS in chief). What the proponent is calling is evidence that the challenged witness has previously stated the same thing at a time prior to the allegation of fabrication.Therefore, on the allegation (express or implied) of recent fabrication, the TOL will allow the witness to be rehabilitated through the calling of evidence regarding a PCS (through this witness on re-examination, for example, or another direct witness to the PCS in chief). What the proponent is calling is evidence that the challenged witness has previously stated the same thing at a time prior to the allegation of fabrication.

22. Example The witness gives their evidence in chief on the matters at issue.The witness gives their evidence in chief on the matters at issue. The cross-examination centres on a monetary payment made to the witness by a party litigant prior to trial. The allegation, express or implied, is clear: the witness is so testifying today because, and due to, the payment made – ie. you recently fabricated this version.The cross-examination centres on a monetary payment made to the witness by a party litigant prior to trial. The allegation, express or implied, is clear: the witness is so testifying today because, and due to, the payment made – ie. you recently fabricated this version. Any rehabilitation of a witness must be relevant to the attack made. In this instance, calling evidence of a PCS prior to the payment is a direct answer to the allegation.Any rehabilitation of a witness must be relevant to the attack made. In this instance, calling evidence of a PCS prior to the payment is a direct answer to the allegation.

23. Recent Fabrication In this exception, the TOF does not consider the PCS POTOC, but merely on the issue of credibility – put in issue by the attack by the opponent.In this exception, the TOF does not consider the PCS POTOC, but merely on the issue of credibility – put in issue by the attack by the opponent. Therefore, we remind ourselves, that oath-helping evidence is not admissible until the credibility of a witness is attacked. To meet the challenge on credibility, pro-credibility evidence is called (such as a PCS if relevant), and such evidence goes to credibility, and not the substantive issues.Therefore, we remind ourselves, that oath-helping evidence is not admissible until the credibility of a witness is attacked. To meet the challenge on credibility, pro-credibility evidence is called (such as a PCS if relevant), and such evidence goes to credibility, and not the substantive issues.

24. Similarly, if the allegation on cross is that the witness made the statement due to bias, then calling evidence of a PCS before the bias arose is a direct response to the allegation.Similarly, if the allegation on cross is that the witness made the statement due to bias, then calling evidence of a PCS before the bias arose is a direct response to the allegation. Also, if the nature of the attack is: “if true, why didn’t you complain of this before?” Then the PCS can be called to show a prior complaint.Also, if the nature of the attack is: “if true, why didn’t you complain of this before?” Then the PCS can be called to show a prior complaint.

25. Res Gestae (2)If what appears to be a PCS is actually a statement that forms part of the res gestae, it would be admissible for that reason, and as an exception to the hearsay rule, POTOC. These are not admissible due to the nature of the attack on cross, if any. Ie. “Q: what did you say at the time of the event?” Normally this question would ask for an answer contrary to the rule, but if part of the event, or arising from the event, it is admissible for that reason, and not to answer an attack.

26. Recent Complaint in Sexual Assault (3) To understand this exception, you must go way back in the common law where the prosecution in a criminal case alleging rape also faced the burden of showing that the complainant had complained in a timely way – ie. raised the “hue and cry”, failing which the TOL would tell the TOF they could find an adverse inference against the Crown’s case for the failure to complain in a timely way.

27. Recent Complaint The Criminal Code, s. 275, repealed this requirement.The Criminal Code, s. 275, repealed this requirement. What this means, in general, is that the Crown no longer leads, or is allowed to lead evidence of the recency of the complaint, unless such evidence is admissible for another reason, such as res gestae, or narrative.What this means, in general, is that the Crown no longer leads, or is allowed to lead evidence of the recency of the complaint, unless such evidence is admissible for another reason, such as res gestae, or narrative.

28. Recent Complaint However, the defence is allowed to make the lack of recent complaint an issue, essentially asking the jury to question why, if this happened, did the complainant not make the allegation in a timely way.However, the defence is allowed to make the lack of recent complaint an issue, essentially asking the jury to question why, if this happened, did the complainant not make the allegation in a timely way. The defence, of course, makes such an allegation, at their peril, as it now makes such previous complaints admissible.The defence, of course, makes such an allegation, at their peril, as it now makes such previous complaints admissible.

29. Recent Complaint Just as in the situation of Recent Fabrication, the PCS is called to answer the attack on credibility – ie. that there was a complaint.Just as in the situation of Recent Fabrication, the PCS is called to answer the attack on credibility – ie. that there was a complaint. The PCS, now admissible due to the attack, goes to credibility, not POTOC.The PCS, now admissible due to the attack, goes to credibility, not POTOC.

30. It is still permissible for defence counsel to invite the jury to draw an adverse inference from the complainant’s failure to properly complain that a crime has been committed against him.It is still permissible for defence counsel to invite the jury to draw an adverse inference from the complainant’s failure to properly complain that a crime has been committed against him. Where evidence is adduced of a failure to complain in a timely fashion, the jury must be warned not to entertain stereotypical thinking that a wronged complainant will always complain.Where evidence is adduced of a failure to complain in a timely fashion, the jury must be warned not to entertain stereotypical thinking that a wronged complainant will always complain.

31. Prior Identification (4) Because dock identification is notoriously suspect, it is properly admissible to have the description of the accused (or the prior identification of the accused) which was given to the police officer by a witness prior to trial tendered at the trial to corroborate such dock identification.

32. Prior Identification The identification witness takes the stand in this exception, and whether they remember the actual prior id or not, as long as they indicate that they did make a selection and it was true, another witness may indicate what that selection was.The identification witness takes the stand in this exception, and whether they remember the actual prior id or not, as long as they indicate that they did make a selection and it was true, another witness may indicate what that selection was. Also, even if they testify to their identification, other witnesses to their out of court identification may also testify to confirm same as an exception to the rule against PCS.Also, even if they testify to their identification, other witnesses to their out of court identification may also testify to confirm same as an exception to the rule against PCS.

33. Prior Identification Extra-judicial identification not only serves to corroborate id evidence given at trial, but such evidence is also admissible as independent evidence POTOC.Extra-judicial identification not only serves to corroborate id evidence given at trial, but such evidence is also admissible as independent evidence POTOC.

34. Prior Identification Prior ex jure statements and evidence from those who have heard the description and/or saw the identification of the perpetrator by a witness are admissible where the identifying witness is unable to identify the accused at trial.Prior ex jure statements and evidence from those who have heard the description and/or saw the identification of the perpetrator by a witness are admissible where the identifying witness is unable to identify the accused at trial.

35. Narrative (5) Narrative. Where a PCS, or any otherwise inadmissible evidence is called, merely for the purpose of setting the stage for the witness’ story, or to give coherence or chronological cohesion thereto – and not as POTOC, the narrative exception can assist.(5) Narrative. Where a PCS, or any otherwise inadmissible evidence is called, merely for the purpose of setting the stage for the witness’ story, or to give coherence or chronological cohesion thereto – and not as POTOC, the narrative exception can assist.