Re-Direct Examinations

From Criminal Law Notebook

General Principles

See also: Examinations

Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination."[1]

Purpose of Re-Direct

The "purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination."[2]It is purpose is to rehabiliate and explain the evidence elicited in cross-examination.[3]

Valid Subjects of Re-Direct

A party calling a witness is entitled to re-examine the witness after cross-examination.[4] But the scope of the re-examination is limited to matters that arose in cross-examination.[5] Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.[6]

Those limited matters arising from cross-examination must be the purpose of (1) rehabilitating the witness from any damaging evidence brought up on cross-examination and (2) explaining any ambiguous or misleading information elicited on cross-examination.[7]

Form of Questions

The rule against leading questions still applies in re-examination.[8]

Improper Re-Direct

Re-examination may not be used to improperly bolster the credibility of the witness after impeaching credibility in cross-examination.[9]

The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination."[10]

Use of Prior Statements in Re-Direct

The re-examination cannot be used to introduce a second inconsistent statement after a first inconsistent statement was introduced in cross.[11]

A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.[12]

Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.[13]

  1. R v Lavoie, 2000 ABCA 318 (CanLII), 271 AR 321, per curiam, at para 46 citing The Law of Evidence in Canada ("The witness is not ordinarily allowed to supplement the examination-in-chief by introducing new facts which were not covered in cross-examination.")
  2. Lavoie, supra, at para 46 citing The Law of Evidence in Canada, at p. 879
  3. R v Candir, 2009 ONCA 915 (CanLII), 250 CCC (3d) 139, per Watt JA, at para 148 ("The purpose of re-examination is largely rehabilitative and explanatory.")
  4. R v Moore, 1984 CanLII 3542, 15 CCC (3d) 543, per Martin JA
  5. R v Moore, at 66 cited in R v Evans, 1993 CanLII 86 (SCC), [1993] 2 SCR 639, per Sopinka J at 36
  6. Evans, ibid. ("The questions that can be asked of right on re-examination should focus on elements from the against-examination relating to new facts or issues raised during the examination and require explanations for asked questions and answers in cons-examination") citing Ewaschuk in Criminal Pleadings & Practice in Canada , 2 e ed (p 16.29 by 16.. 2510)
    Candir, supra, at para 148 ("... The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner's case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. ...")
    R v Linklater, 2009 ONCA 172 (CanLII), 246 OAC 303, per curiam, at para 13
    Barboza-Pena c R, 2008 QCCA 1133 (CanLII), 58 CR (6th) 278, per curiam, at para 36
  7. E.G. Ewaschuk in Criminal Pleadings and Practice Canada, 2d ed., in these words at p. 16.29, at para 16:2510 (Counsel is entitled to ask questions that "relate to matters arising out of the cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination.")
    Candir, supra, at para 148
  8. Moore, supra at 66
    See Phipson on Evidence (13th Ed.), at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, at p. 567
  9. Moore, supra
  10. R v Schell, 2013 ABCA 4 (CanLII), 293 CCC (3d) 400, per curiam ("re-examination is permitted if it is not merely repetitious and if it genuinely arises from the cross-examination")
  11. R v Horsefall, 1991 CanLII 5768 (BC CA), 70 CCC (3d) 569, per Goldie JA
  12. R v Patterson, 2003 CanLII 30300 (ON CA), 174 CCC (3d) 193, per Gillese JA, at para 49
  13. R v Lavoie, 2000 ABCA 318 (CanLII), 271 AR 321, per curiam
    see also Prior Consistent Statements

New Subjects Usually Not Allowed

The judge should generally not permit counsel to "introduce" on re-direct "new subjects" where the topic "should have been covered" in direct examination.[1]

Discretion to Permit "new facts" not arising from Cross-Examination

New facts can be permitted in re-examination at the discretion of the judge. [2] If permitted, the judge must also permit the opposing counsel the firt to cross-examine further.[3]

  1. R v Candir, 2009 ONCA 915 (CanLII), 250 CCC (3d) 139, per Watt JA, at para 148 (After describing the rehabiliatory nature of re-direct, the judge stated that "[t]he examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness.")
  2. Moore, supra at 66
    Candir, supra, at para 148 ("A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts")
  3. Candir, supra, at para 148

Re-Direct vs Reply or Rebuttal

In contrast to re-direct, reply or rebuttal evidence is only permitted where the evidence was not reasonably anticipated.[1]

  1. see R v KT, 2013 ONCA 257 (CanLII), 295 CCC (3d) 283, per Watt JA
    see also Reply or Rebuttal evidence

See Also