Examinations-in-Chief

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 95616)

General Principle

See also: Examinations and Cross-Examinations

An examination-in-chief or direct examination is where the party calling a witness to give evidence asks the witness questions to elicit evidence.

Rule Against Leading Questions

A leading question is a question that suggests the desired answer.[1] In general, counsel cannot ask leading questions on of the witness that they call.[2] Leading questions are questions that clearly seek a particular answer (eg. "you saw the accused, didn't you?") or are questions that assume a foundation not in evidence (eg. "what happened after the accused stabbed him?").[3]

Rationale

The reason for not allowing leading questions include:[4]

  • bias of the witness in favour of the calling party
  • the danger that the calling party will only bring out helpful information without any balance that could come from the witnesses own version[5]
  • the possibility that the witness will merely agree with everything put to the witness by the calling party.[6]
  • a witness who is nervous, not alert, confused or otherwise easily persuaded may accept the suggestion of a leading question without reflection.[7]

The leading question may "impose the questioner’s will on the witness so as to elicit inaccurate information, absent an intention to do so on the part of the counsel or witness”[8]

The importance of not leading depends on the circumstances. The rule should be flexible at the least for the sake of expediency.[9]

Discretion in the "Interests of Justice"

A judge has discretion to allow any leading question where it is "necessary in the interests of justice."[10]

Exception

It is usually permissible to lead on a number of issues:

  • introductory or non-controversial matters such as name, address, position, etc.[11]
  • for the purpose of identifying persons or things[12]
  • where "necessary to direct the witness to a particular matter or field of inquiry."[13]
  • to allow one witness to contradict another regarding statements made by that other[14]
  • where the witness is declared hostile;
  • where the witness is defective based on age, education, language, mental capacity[15]
  • where it is a complicated matter, at the judge's discretion[16]

A judge has discretion to allow leading where it is in the interest of justice.[17]

Consequence of Leading Questions

The answer to a leading question is not necessaries inadmissible but will carry very little or less weight, especially on critical issues.[18]

The weight given to an answer from a leading question will depend on "how leading the question was, the subject matter and other evidence before the Court." [19] It will often be that the inappropriateness of the question, and so the weight given to the answer, will be assessed in the light of whole circumstances of the case, after subsequent testimony of the witness.[20]

Objections

Objections should not be made to leading questions unless the question is "critical" to the case.[21]

The use of leading questions will be tolerated more when for the purpose of a "controlled examination" rather than where is becomes a "cross‑examination for the purpose of discrediting or contradicting" the witness.[22]

  1. ↑ R v Rose, 2001 CanLII 24079, 153 CCC (3d) 225, per Charron JA (3:0), at para 9 ("A leading question is one that suggests the answer.")
  2. ↑ Rose, ibid., at para 9 ("It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions.")
    cf. R v Bhardwaj, 2008 ABQB 504 (CanLII), 456 AR 313, per Lee J, at para 45 suggests that it only goes to weight ( "There is no rule of law that the answer to a leading question must be given no weight, or that they cannot be asked.”)
  3. ↑ Rose, supra, at para 9
    R v W(EM), 2011 SCC 31 (CanLII), [2011] 2 SCR 542, per McLachlin CJ (6:1), at para 9
    Nicolls v Kemp (1915), 171 E.R. 408 per Lord Ellenborough (“If questions are asked, to which the answer yes or no would be conclusive, they would certainly be objectionable.”)
  4. ↑ Rose, supra, at para 9 ("The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions.")
  5. ↑ Maves v Grand Truck Railways (1913) 5 WWR 212 (ABCA), 6 Alta LR 396(*no CanLII links)
  6. ↑ Maves v Grant Truck Pacific Railway, ibid.
    Connor v Brant (1914) 31 OLR 274(*no CanLII links)
    Sopkina, Law of Evidence in Canada at ss.16.33
    R v Clancey, [1992] O.J. No 3968 (Ont. Sup. Ct.)(*no CanLII links) , per Watt J (the witness “may be too disposed to assent to the proposition of counsel, rather than upon reflection or exertion of the witness’ own and true memory”)
  7. ↑ Maves
  8. ↑ MacWilliams Canadian Criminal Evidence 4th Edition p. 18:10
  9. ↑ Rose, supra, at para 9 ("Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. ... ")
  10. ↑ Rose, supra, at para 9 ("...the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice...")
  11. ↑ Rose, supra, at para 9 ("Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry.") Maves v Grand Truck Railways(ABCA), supra, at 219
    R v Muise, 2013 NSCA 81 (CanLII), per Hamilton JA, at para 23
    R v Situ, 2005 ABCA 275 (CanLII), 200 CCC (3d) 9, per curiam (3:0), at para 9
    Cross on Evidence 3rd ed. (London: Butterworths 1967) p. 189
    Rose, supra, at para 9
  12. ↑ Delisle, "Evidence: Principles and Problems" (7th Ed.), at p. 414, states at common law
  13. ↑ Rose, ibid., at para 9 ("Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry.")
    Muise, supra, at para 23
  14. ↑ Delisle, supra
  15. ↑ Delisle, supra
  16. ↑ Delisle, supra.
  17. ↑ Reference Re R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191, p. 22
    Muise, supra, at para 23
  18. ↑ Moor v Moor [1954] 2 All ER 458 (CA) (UK)
    R v Williams, 66 CCC (2d) 234 (Ont. C.A.)(*no CanLII links) see p. 236 (“It is clear, however, that an answer elicited by a leading question is entitled to little, if any, weight.”)
    R v Nicholson, 1998 ABCA 290 (CanLII), 129 CCC (3d) 198, per curiam (3:0)
    R v Bhardwaj, 2008 ABQB 504 (CanLII), 456 AR 313, per Lee J, at para 45("...the answers to leading questions are admissible, although the trier‑of‑fact may give less weight to a witness’s answer elicited by a leading question. ... There is no rule of law that the answer to a leading question must be given no weight, or that they cannot be asked. The examiner in asking a leading question runs the risk that the answer will be given less weight than if elicited in a non‑leading manner. ")
    R v Gordon-Brietzke, 2012 ABPC 221 (CanLII), 547 AR 260, per Allen J, at paras 41 to 57
    R v Parkes, [2005] OJ No 937(*no CanLII links) , at para 44
    R v Cawthorne, 2015 CMAC 1 (CanLII), 7 CMAR 993, per Zinn JA, at para 62 ("Evidence obtained by a leading question is not inadmissible; rather, it is up to the trier of fact to consider whether the weight of the answer is negatively affected by the way in which it was produced")
    S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2013) (loose-leaf revision 2013-4), at 21-8 to 21-16
  19. ↑ R v Bhardwaj, 2008 ABQB 504 (CanLII), 456 AR 313 (Alta. Q.B.), per Lee J, at para 45
    MacWilliams Canadian Criminal Evidence 4th Edition, at pp. 18 - 16
  20. ↑ MacWilliams Canadian Criminal Evidence 4th Edition, at pp. 18 - 16 (“The weight ... given ... is thus best assessed in light of the circumstances of the case. ...subsequent testimony from the witness, whether in chief or cross-examination, may make clear that the leading question had no improper impact on the answer elicited.”)
  21. ↑ FJ. Wrottesley, Examination of Witnesses in Court, 3rd Ed., at p. 42
    Cox, "Criminal Evidence Handbook", 2nd Ed, at p. 114
  22. ↑ R v Muise, 2013 NSCA 81 (CanLII), per Hamilton JA (3:0), at para 27
    R v Situ, 2005 ABCA 275 (CanLII), 200 CCC (3d) 9, per curiam (3:0), at para 12

See Also

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