Analyzing Testimony

This page was last substantively updated or reviewed June 2022. (Rev. # 96823)

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Findings of Fact

Only the trier-of-fact (ie. the judge or jury) can make findings of fact unless there is an agreement on facts or an admission under s. 655 of the Code.

Analysis of Testimony

Tools of Analysis

When considering testimony evidence, its value comes down to four factors:

1. perception,
2. memory,
3. narration, and
4. sincerity

Evidence Not to be Analyzed Separately

Facts should not be examined separately and in isolation to the standard of proof beyond a reasonable doubt.

However, beyond determining whether the evidence, on the whole, proves guilt beyond a reasonable doubt, "it is for the trier of fact to determine how to proceed."

No Choosing of Stories

When confronted with two contradictory stories, a judge does not need to make a finding of fact as to which story is correct.

An approach that permits choosing of stories would "erode" the presumption of innocence and standard of proof beyond a reasonable doubt. However, it is not an error to make "finding of credibility as between the complainant and the accused" as long as all the steps of further analysis are taken. It is only in error should the judge treat the task as complete once a finding of credibility as between the complainant and accused.

Guilt should not be based on a credibility contest or choice between competing evidence.

Order of Witness Analysis

Should the accused testify, it is generally expected that the accused's evidence be analyzed first. However, should the judge assess the complainant's evidence first is not necessarily wrong so long as it does not have the effect of reversing the burden of proof. The order is not "carved in stone." What is important is that the evidence of each witness is tested against the evidence of the others.

Acceptance of Evidence

Selective Acceptance of a Witness' Evidence

Evidence before a judge are not facts. The judge has the power to hear evidence from which factual conclusions may be made. The testimony of a witness is not a fact until the trier finds it as so. It is only for the trier to decide. The trier may accept all, some, or none of what a witness says. If the witness is not believed on an issue, the evidence supporting it must be rejected.

Of the evidence accepted, the trier-of-fact may associate different weights to individual parts of the evidence.

The determination of guilt must not be determined on the basis of a mere credibility contest or choice of preference between witnesses.

Finding of Facts Limited to Issues of Dispute

It must be remembered that when assessing evidence heard at trial, it is not the court's role to "resolve the broad factual question of what happened". The judge is only obliged to decide "whether the essential elements of the charge have been proven beyond a reasonable doubt."

Editing Statements

The court does have a limited power to edit statements and other forms of evidence as part of its jurisdiction over the trial process. This is usually applied where the evidence is unduly prejudicial.

Consequence of Findings

Reliance on Evidence

The trier-of-fact may only convict where there has been "acceptable credible evidence" that was found to be factually correct. If there is "contradictory evidence" on an element of the charge the accused must be given the benefit of that doubt even if the accused evidence is rejected.

No Need for Corroboration

In appropriate cases, regardless of the offence, it is reasonable to find guilt based solely on the evidence of a single witness.

Stereotype and prejudice

The judge may rely on reason, common sense, life experience, and logic in assessing credibility but cannot rely on "stereotypical assumptions and "generalizations lacking in an evidentiary foundation."

Appellate Review

On appeal, findings of credibility cannot be interfered with unless the "assessments ... cannot be supported on any reasonable view of the evidence." In giving deference, the law recognizes that the trial judge has the "benefit of the intangible impact of conducting the trial."

Findings of witness credibility is strictly factual.

An appellate court should not interfere with credibility assessments "except in very particular circumstances."

The assessment of credibility is given considerable deference on review. However, where a legal error is made in assessing credibility, there is no deference and may require intervention.

Where the judge fails to give sufficient reasons to explain the findings on credibility and reliability intervention may be warranted. It is essential that the judge resolve "major" or "significant" inconsistencies in testimony so that the accused understands why the judge is left without reasonable doubt.

Where an essential element turns on credibility, a failure to make credibility findings may amount to a reversible error.

The finding of a fact where there is no evidence to support it is reviewable as a question of law on a standard of correctness. The same goes for interpreting the legal effect of a finding of fact.

Finding of fact based on an irrelevant consideration is a question of law and reviewable on a standard of correctness.

Credibility and Reliability

"Credibility" vs "Reliability"

Credibility refers to the witness's ability to be "honesty or veracity". Reliability refers to a witnesses "accuracy." A discreditable witness cannot be reliable. However, a credible witness may still be make an honest mistake.

A credible witness can give unreliable evidence, but a non-credible witness cannot give reliable evidence.

Accuracy of a witness considers their ability to (1) observe, (2) recall and (3) recount to events at issue.

Findings of a Judge

A judge may believe all, some, or none of a witness's testimony. Whatever is accepted may be allocated different weight to each piece of evidence.

Given that witnesses are not presumed to tell the truth, the trial judge has no obligation to accept any uncontradicted evidence given by the witness. In fact, uncontradicted evidence may be rejected by the judge on the basis of "reason, common sense and rationality."

Findings of credibility are sometimes made simpler through objective independent evidence or corroboration.

On appellate review, it is not important whether a judge makes specific findings in reference to "credibility" and "reliability". It is only necessary that the judge turn their mind to the relevant factors that go to believability. Acceptance of inculpatory evidence implies an assessment of truthfulness, sincerity, and accuracy.

Analysis of Credibility

Evaluating evidence involves the assessment of a witnesses credibility and reliability. These are distinct but related concepts referring to the witness' veracity (the former) and accuracy (the latter). There can be significant overlap. "Testimonial reliability" or "reliability" can often mean or include credibility.

Evaluating credibility is not a scientific or intellectual process.There are no hard and fast rules to apply. It is not simply the application of a set of rules as much as it is "a multifactoral evaluation of the witness that includes factors such as the witness’ intelligence, demeanor, ability and capacity to observe and remember, and the intent of the witness to be truthful or deceive."

It involves a "complex intermingling of impressions" based on observations in the context of "independent evidence" and "preponderance of probabilities" that are recognized as reasonable.

The process can often defy verbalization, particularly where "complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events."

Any case that turns on the issue of credibility between two witnesses, the main question is whether the Crown has proven the case beyond a reasonable doubt. Where significant inconsistencies or contradictions exist in the complainant's evidence, the trier-of-fact must assess the evidence carefully.

A failure to properly articulate the credibility concerns may amount to a reversible error.

A failure to cross-examine a witness on a point that is significant to an important issue can be taken into account when evaluating credibility.

Totality of Evidence

The evidence of a witness must always be assessed "in light of the totality of the evidence adduced in the proceedings."

This involves considering the "whole tapestry" (or the "whole scope and nature") of the evidence.

It is an error of law to evaluate reliability and credibility on the basis of individual pieces of evidence without looking at the totality of the evidence.

Disbelief vs Fabrication

There is a distinction between the disbelief of a witness and a conclusion of fabrication.

A disbelieved alibi has no evidentiary value. However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence. The judge should consider the content of the statement and its connection with the charge.

A finding of fabrication cannot be inferred simply on a finding of disbelief. Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events." The circumstance under which the disbelieved evidence was given is not "independent evidence" permitting an adverse inference.

Direct evidence of fabrication, however, does not need to be confirmed or independently proven.

This evidence includes the circumstances where an accused made a disbelieved out-of-court statement, such that it suggests the accused's intent to mislead or deflect suspicion and shows a conscious knowledge that he committed an offence.

Rejecting Defence Evidence

A considered and reasoned acceptance of the Crown evidence beyond a reasonable doubt on points of conflicting evidence may be sufficient to constitute an explanation to reject defence evidence.

Jury Instructions

There is a "real danger" that a jury, faced with an argument seeking that they disbelieve the exculpatory explanation of the accused, will infer guilt, especially where the exculpatory version was heard for the first time at trial.

Analyzing Reliability

Reliability is a particular concern in situations such as:

• witnesses are very young,
• where they testify about distant historical events,
• where their accounts are inconsistent or contradictory,
• where their accounts are unsupported by any other reliable evidence,
• where their observations are not recorded contemporaneously,
• where they have a poor opportunity to observe, or
• where some other shortcoming relevant to perception, memory, or
• communication may exist.

Factors in Evaluating Credibility and Reliability

There are many tools for assessing the credibility and reliability of a witness' testimony.

Character-based Assessments

General Character

A witness will be considered less reliable for personal characteristics and bakcground:

1. prior criminal record, particularly for offences relating to honesty.
2. prior discreditable conduct unrelated to criminal convictions.
3. reputation in a community of untrust-worthiness
4. evidence of relevant habits

Situational Character

1. motive to mislead
   1. "unsavoury" witness who has a motive to avoid culpability

Credibility — Delivery

Manner of Delivery

1. consider the manner of response, being whether the witness gave evidence that was forthright, candid, straightforward and was responsive to questions. Did the evidence flow in a logical and consistent manner or was the witness evasive, non-responsive, argumentative, or hesitant to answer (either at time of testimony or in prior statements);

Credibility — Content of Testimony

Consistency with Common Sense and Experience

1. Consider whether the testimony accords or is in "harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions". Consider whether common sense suggests that the evidence is impossible or highly improbable or whether it was reasonable and consistent with itself and with the uncontradicted facts.
   1. considering whether a person's words and actions are explained and whether it matches their emotional state at the time
   2. the reasonableness of a person's reaction to events
   3. evidence showing the demeanor of a complainant shortly following the offence can be useful to credibility. A person alleging a sexual assault or common assault may be quite upset when speaking to police, which may lend to credibility.
   4. whether there is any embellishment or minimizing of events. Likewise, any signs of attempts at recasting evidence to suit a particular goal; putting himself in a good light,
   5. whether the witness adjusted their evidence when confronted with new evidence or simply gave different explanations for a single action.
   6. whether the explanation contains an inordinate level of complexity.

Content of Testimony — Inconsistences

1. Inconsistencies
   1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial or other hearings.
   2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses or between testimony and documentary evidence;
2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, interest in the outcome, or any other motive to favour or injure the accused;
   1. Motive to Deceive

Reliability

Reliability — Observations

1. Capacity: consider the capacity of the witness to relate their testimony:
   1. ability and opportunity to observe the factual matters that they are testifying to;

1. 1. ability to communicate the details of their testimony;
2. Justifiable error: consider whether the witness, because of the turmoil surrounding the event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence;
3. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
4. if recollection was recorded, consider the timing at which notes were made;
5. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
6. Where applicable, was the witness able to give admissions against interest? Or were there signs of self-serving?
7. inconsistencies on matter that the witness has little reason to get wrong or lie about.

Reliability — Memory and Recall

1. ability to remember the events observed based on emotional importance to the witness of the observation at the time they were made and the . Consider as well the person's general frailties and capacity for recollection and
2. ability to remember based based on prior recordings of their recollections. Consider the timing at which they were asked to record their recollection and the time that they were prompted of the importance of the observation
3. amount of time that passed
4. demonstrated insecurity when giving details

Reliability — Communication

1. signs that the witness is not communicating observations accurately or completely.
   1. poor vocabulary and imprecise langauge
   2. admissible opinions unsupported by material details.
   3. implausible details rationally attributable to inaccurate description

Inconsistencies

Consistencies and inconsistencies are an "important aspect" in assessing credibility.

Use on Inconsistencies in Cross-examination

Cross-examining a witness on a prior inconsistent statement may only be used to go to the live issue of credibility. The prior statement cannot be used for the truth of its contents unless the witness adopts the statement.

It is necessary that the judge provide limiting instructions on the use of a prior inconsistent statement.

Evaluation of Seriousness of Inconsistencies

Generally speaking, inconsistencies in a witnesses evidence must be evaluated before the judge can accept it.

Inconsistencies on peripheral matters and not to the "essence" of the charges and so may be excused.

A series of minor inconsistencies "may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence". The trier-of-fact should consider the "totality of the inconsistencies in order to assess whether the witness's evidence is reliable."

The trial judge does not need to address every inconsistency.

Minor Inconsistencies

Inconsistencies between witnesses regarding "peripheral matters" such as time, speed and distance, all of which are affected by subjective assessments, will usually have a limited effect on reliability unless glaringly different. Minor differences on details can in fact enhance, rather than detract, from the credibility of the witness as too much similarity will suggest collusion. Such inconsistencies should be considered in the context of the witnesses age at the time of the events.

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”. The benefit of the doubt should be given to the witness.

A "series" of "minor inconsistencies" may become "quite significant" such that the trier of fact may create a reasonable doubt on the reliability of the witness.

There is no "rule" that determines when minor inconsistencies collectively amount to reason to find doubt in the witnesses overall credibility.

Major Inconsistencies

Where there are two equally credible witnesses there are a number of rules of thumb that can be applied:

• the testimony must be contrasted with the undisputed facts to see which is the closer "fit."
• The judge should consider what is reasonably recallable and not recallable by the particular witness.
• the judge should favour the witness who is in a better position to know a particular fact.
• where evidence is "incredible", there must be more undisputed facts to support this claim

An inconsistency may or may not be significant depending on whether such errors in detail are "normal" and "to be expected" or, alternatively, are errors that "are "unlikely to be mistaken" and "demonstrate a carelessness with the truth or raise reliability issues."

Where there are major inconsistencies or contradictions with key Crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.

Resolving Inconsistencies

The judge is obligated to consider all the evidence as a whole, especially where credibility is at issue. However, inconsistencies of facts that are not necessary to determine the case do not need to be resolved.

Consistencies and Corroboration

• See Corroboration and Prior Consistent Statements

Motive and Bias

The judge may take into account the existence or absence of evidence of a motive to fabricate the allegation. There is no onus on the accused to establish a motive to lie on the part of the complainant. Do to otherwise, would have the effect of removing the presumption of innocence.

Motive is only one factor to consider when assessing credibility.

The absence of motive to fabricate should not be given undue weight to suggest that the complainant is telling the truth. The absence should not be considered the same as an absence of a motive to fabricate. Suggesting that it is true unfairly bolsters the witness's credibility. Corrective jury instructions should be given if such a suggestion is made.

Evidence establishing motive is always admissible, but it should not be mistaken for evidence that merely shows a history of incidents between parties. The Crown may present evidence that suggests an absence of any motive on the part of the complainant to fabricate their story. This can include presenting evidence of the relationship between complainants or between the accused and a single complainant.

Proven absence of motive is "always an important fact in favour of the accused."

Questions that go beyond what the witness would have known and invite speculation as to the motive is improper. This includes asking the accused to explain why the complainant would make allegations against them.

Where the accused theory alleges that a Crown witness lied out of self-interest, the judge may "consider that the [Crown] witness would have had no, or less, reason to be untruthful on particular points of evidence in respect of which [the accused] provided radically inconsistent testimony."

It is permitted for the trial judge to conclude that the evidence of a witness is not based on actual memories but is more likely rationalizations, assumptions or believed on how they would have behaved.

Emotional State

Evidence of emotional state "may constitute circumstantial evidence confirming that the offence occurred... including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state."

Intoxication

A witness's level of intoxication will tend to reduce the amount of reliability placed upon the witnesses evidence.

Demeanour

Credibility may be assessed from demeanour. This can include "non-verbal cues" and "body language, eyes, tone of voice, and the manner" of speaking as well as "their movements, glances, hesitations, trembling, blushing, surprise or bravado."

Reliability of Demeanour

A subjective view of demeanour can be unreliable indicator of accuracy. It should only be considered "with caution."

The conduct and behaviour of a witness in court should not be given too much weight.

A judge should not decide matters of credibility on the strength of demeanour evidence alone as it would be too "dangerous."

Demeanour can be affected by factors including "culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom."

It should be recognized that witnesses are testifying in a foreign environment and are often nervous and are feeling significant pressure, especially when undergoing prolonged cross-examination.

A Judge should consider how "unfamiliar and stressful" a courtroom is when testifying which may affect demeanour. It would follow then to consider some sort of "baseline" on how they react in stressful situations.

Decision Exclusively on Demeanour

A decision on credibility based solely or predominantly on the demeanour of a witness is an error.

Demeanour evidence alone is not always considered a proper manner of assessing credibility.

Demeanour by itself cannot be sufficient alone to make a conclusion on credibility or conviction, especially where there are "significant and unexplained inconsistencies in the evidence.

Demeanour Outside of Witness Box

A court may only take "modest reliance" on demeanour evidence when the witness is not in the witness box. The use of this demeanour evidence to make significant findings of credibility against the accused is a reversible error. The risks associated with misinterpreting demeanour is even stronger when they are simply sitting in the courtroom.

Outbursts

Emotional outbursts while testifying are relevant to the assessment of the witness, including evidence of animus against the accused. Prejudicial utterances may require a mid-trial jury instruction.

Embellishment or Minimization

A judge may take into account the presence or absence of embellishment or minimization in their testimony.

Observing the witness's "candour" due to the absence of these elements can be validly observed as reason not to diminish credibility. However, it is impermissible to reason that because the allegation could have been worse, that makes it more likely to be true.

Intuition

There is some support for the proposition that judges may rely upon their intuition to determine the credibility of a witness. A judge will often invoke their appreciation that the witness has a "ring of truth."

Common Sense and Plausibility

It would be dangerous to uphold a conviction "on the basis that one party's version was less plausible than the other's" alone. That is not to say that common sense and plausibility are not useful tools in evaluating evidence. Triers-of-fact are permitted to reject a witnesses evidence, including that of the accused, on the basis that it does not accord with "collective human understanding of the behaviour" of a person in the shoes of the alleged victim.

It is said that "[h]uman nature, common sense and life's experience are indispensable when assessing credibility."

There is no prohibition to use common-sense and human experience to identify and draw inferences from the evidence.

It is impermissible and speculative to invoke common-sense assumptions not grounded in evidence or supported by judicial notice. Common-sense and experience should not be used to "introduce new considerations, not arising from the evidence, into the decision-making process. This rule however does not bar the judge from applying the judge's experience with human behaviour to interpret evidence.

Accepted Common Experiences

There are certain general observations founded in common experiences that judges may rely upon, including:

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
• a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
• it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events; and
• a child caught up in a conflict between his father and his father’s partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child’s recollection, recounted several years later, about events that may not have been particularly significant to the child at the time.

Stereotypes

Findings of fact and assessment of credibility cannot rely on stereotypical inferences of human behaviour or "prejudicial generalizations". It would be an error of law to do so.

The prohibition against stereotypical inferences does not prevent the judge from using otherwise relevant evidence that could support a stereotype.

Observations Made in Court

A judge should not reject the defence evidence based solely on observations of the witness' build to infer his capacity.

Evidence of Collusion or Tainting

Evidence that the witness was influenced by others would be reason to give no weight to their evidence.

Collusion

There is no requirement that the judge must make an actual finding that collusion occurred in order to discount the evidence of a witness. In some circumstances it is open to the judge to rely upon an "opportunity to collude." However, a witness should generally not be entirely discredited merely on the basis of opportunity.

Collusion can be unintentional such as where multiple individuals watch the same news story and are influenced by the single story.

Tainting of Evidence

The independence of a person's recollection can be compromised by being exposed to other persons statements.

A witness who sat in on the preliminary inquiry evidence before giving a statement to police can be reason to find there is no credibility in their evidence.

Special Types of Testimony

Judges must be careful to avoid falling into an analysis that compares the two versions without assessing "the whole evidence to establish proof of guilt beyond a reasonable doubt."

The trier of fact should not place much weight on exculpatory stories in the absence of evidence supporting the theory.

A judge must not subject an accused's testimony to more scrutiny than that of the complainant. The judge must apply an "even and equal level of careful analysis."

There are special considerations when assessing credibility in a Charter voir dire.

Silence of Non-Accused

A witness who remains silent to police to avoid incriminating himself but later testifies at trial to incriminating matters should not have their evidence rejected because they acted "sensible" by remaining silent.

No Presumptions For or Against Truthfulness or Accuracy

There is no legal presumption that those testifying in criminal trials are telling the truth or that they are testifying accurately.

There is no rules that says that the trier of fact has to believe or disbelieve any part of a witnesses testimony.

Credibility of Accused (The W.D. Test)

• Weighing Testimony of the Accused

The WD Test which concerns analysis of the accused testifying, has application outside of merely the accused testifying but also on any evidence called by the defence that conflicts with the Crown evidence on a "vital" issue.

Assessing An Accused Cautioned Statement to Police

Where the Crown adduces the accused's statement to police as part of it case, the Court must assess that evidence which addresses a "vital issue" in the same manner as if the accused testified himself.

Credibility of the Complainant or Victim

• Credibility of Complainants or Victims

Credibility of Persons from Other Cultures

Assessing Interpreter Evidence

Assessing credibility through an interpreter requires careful consideration as it is recognized as a much more difficult endeavour.

Courts should not put too much weight on perceived inconsistencies where evidence is conveyed through a interpreter.

Credibility of Children

• Credibility and Reliability of Child Witnesses

Adults Testifying to Events Occurring When a Child

Adults testifying to events that occurred while they were a child should be assessed using standard factors for adult witnesses. However, the evidence should be considered in the context of the age of the witness. Minor inconsistencies should be considered in light of the witnesses age at the time.

Common sense should be applied to the level of "exactitude and detail" which may be missing from a child's world perspective.

Credibility of Police Officers

It is not proper for courts to take the evidence of a police officer over that of a civilian by virtue of their position.

Credibility for Other Types of Witnesses

Expert evidence may be admitted to establish the effect that the "code of silence" will have upon a witness including a reluctance to testify or a prior inconsistent statement.

When assessing expert evidence, the jury is entitled to accept or reject any part of the testimony and determine how much waits to be given just as it is permitted for lay witness evidence.

Related Topics

• Verdicts
• Proving Facts (inferences, presumptions, etc.)
• Role of the Trial Judge

See Also

• Jury Instructions