Re-Direct Examinations: Difference between revisions
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==General Principles== | ==General Principles== | ||
{{seealso|Examinations}} | {{seealso|Examinations}} | ||
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'''Re-examine on "new facts"'''<br> | '''Re-examine on "new facts"'''<br> | ||
Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination".<ref> | Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination".<ref> | ||
R v Lavoie, [http://canlii.ca/t/5rmf 2000 ABCA 318] (CanLII) 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.") | R v Lavoie, [http://canlii.ca/t/5rmf 2000 ABCA 318] (CanLII){{TheCourt}} 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.") | ||
</ref> | </ref> | ||
A party calling a witness is entitled to re-examine the witness after cross-examination.<ref> | A party calling a witness is entitled to re-examine the witness after cross-examination.<ref> | ||
R v Moore (1984), 15 CCC (3d) 543 (Ont. C.A.), [http://canlii.ca/t/g945z 1984 CanLII 3542] (ON CA) | R v Moore (1984), 15 CCC (3d) 543 (Ont. C.A.), [http://canlii.ca/t/g945z 1984 CanLII 3542] (ON CA){{perONCA|Martin JA}}</ref> | ||
The scope of the re-examination is limited to matters that arose in cross-examination.<ref>R v Moore, at 66 cited in R v Evans [1993] 2 SCR 639, [http://canlii.ca/t/1frzq 1993 CanLII 86] (SCC) at 36</ref> Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.<ref> | The scope of the re-examination is limited to matters that arose in cross-examination.<ref>R v Moore, at 66 cited in R v Evans [1993] 2 SCR 639, [http://canlii.ca/t/1frzq 1993 CanLII 86] (SCC){{perSCC| Sopinka Sopinka J}} at 36</ref> Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.<ref> | ||
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)<br> | |||
R v Candir, [http://canlii.ca/t/2754x 2009 ONCA 915] (CanLII)<br> | R v Candir, [http://canlii.ca/t/2754x 2009 ONCA 915] (CanLII){{perONCA|Watt JA}}<br> | ||
R v Linklater, [http://canlii.ca/t/22nhr 2009 ONCA 172] (CanLII), at para 13<br> | R v Linklater, [http://canlii.ca/t/22nhr 2009 ONCA 172] (CanLII){{TheCourt}}, at para 13<br> | ||
Barboza-Pena c. R., [http://canlii.ca/t/1x9hd 2008 QCCA 1133] (CanLII), at para 36<br> | Barboza-Pena c. R., [http://canlii.ca/t/1x9hd 2008 QCCA 1133] (CanLII){{TheCourt}}, at para 36<br> | ||
</ref> | </ref> | ||
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."<ref> | 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."<ref> | ||
Lavoie{{supra}} at para 46 citing The Law of Evidence in Canada, at p. 879<br> | |||
</ref> | </ref> | ||
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The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".<ref> | The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".<ref> | ||
R v Schell, [http://canlii.ca/t/fvhsp 2013 ABCA 4] (CanLII) ("re-examination is permitted if it is not merely repetitious and if it genuinely arises from the cross-examination") | R v Schell, [http://canlii.ca/t/fvhsp 2013 ABCA 4] (CanLII){{TheCourt}} ("re-examination is permitted if it is not merely repetitious and if it genuinely arises from the cross-examination") | ||
</ref> | </ref> | ||
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'''Use of Prior Statements in Re-Direct'''<Br> | '''Use of Prior Statements in Re-Direct'''<Br> | ||
The re-examination cannot be used to introduce a second inconsistent statement after a first inconsistent statement was introduced in cross.<Ref> | The re-examination cannot be used to introduce a second inconsistent statement after a first inconsistent statement was introduced in cross.<Ref> | ||
R v Horsefall, [http://canlii.ca/t/2327h 1991 CanLII 5768] (BC CA) | R v Horsefall, [http://canlii.ca/t/2327h 1991 CanLII 5768] (BC CA){{perBCCA|Goldie JA}} | ||
</ref> | </ref> | ||
A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.<ref> | A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.<ref> | ||
R v Patterson, [http://canlii.ca/t/ | R v Patterson, [http://canlii.ca/t/7clf 2003 CanLII 30300] (ON CA){{perONCA|Gillese JA}}, at para 49<br> | ||
</ref> | </ref> | ||
Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.<Ref> | Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.<Ref> | ||
R v Lavoie, [http://canlii.ca/t/5rmf 2000 ABCA 318] (CanLII)<br> | R v Lavoie, [http://canlii.ca/t/5rmf 2000 ABCA 318] (CanLII){{TheCourt}}<br> | ||
see also [[Prior Consistent Statements]] | see also [[Prior Consistent Statements]] | ||
</ref> | </ref> | ||
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Reply or Rebuttal evidence is only permitted where the evidence was not reasonably anticipated.<ref> | Reply or Rebuttal evidence is only permitted where the evidence was not reasonably anticipated.<ref> | ||
see R v | see R v KT, [http://canlii.ca/t/fx5wz 2013 ONCA 257] (CanLII){{perONCA|Watt JA}}<br> | ||
see also [[Trial Process#Reply or Rebuttal|Reply or Rebuttal evidence]] | see also [[Trial Process#Reply or Rebuttal|Reply or Rebuttal evidence]] | ||
</ref> | </ref> | ||
Re-direct has | Re-direct has no requirement that the area of evidence to have been unanticipated. | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 22:32, 11 November 2018
General Principles
Re-examine on "new facts"
Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination".[1]
A party calling a witness is entitled to re-examine the witness after cross-examination.[2] The scope of the re-examination is limited to matters that arose in cross-examination.[3] Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.[4]
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."[5]
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."[6]
The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".[7]
Introducing "new facts" not arising from Cross
New facts may be raised in re-examination at the discretion of the judge. If the judge permits it, the opposing party must be permitted to cross-examine.[8]
Form of Questions
The rule against leading questions still applies in re-examination.[9]
Improper Re-Direct
Re-examination may not be used to improperly bolster credibility of the witness after impeaching credibility in 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]
Re-Direct vs Reply or Rebuttal
Reply or Rebuttal evidence is only permitted where the evidence was not reasonably anticipated.[14] Re-direct has no requirement that the area of evidence to have been unanticipated.
- ↑ R v Lavoie, 2000 ABCA 318 (CanLII), 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.")
- ↑ R v Moore (1984), 15 CCC (3d) 543 (Ont. C.A.), 1984 CanLII 3542 (ON CA), per Martin JA
- ↑ R v Moore, at 66 cited in R v Evans [1993] 2 SCR 639, 1993 CanLII 86 (SCC), per Sopinka Sopinka J at 36
- ↑
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)
R v Candir, 2009 ONCA 915 (CanLII), per Watt JA
R v Linklater, 2009 ONCA 172 (CanLII), per curiam, at para 13
Barboza-Pena c. R., 2008 QCCA 1133 (CanLII), per curiam, at para 36
- ↑
Lavoie, supra at para 46 citing The Law of Evidence in Canada, at p. 879
- ↑ E.G. Ewaschuk in Criminal Pleadings and Practice Canada, 2d ed., in these words at p. 16.29, para 16:2510
- ↑ R v Schell, 2013 ABCA 4 (CanLII), per curiam ("re-examination is permitted if it is not merely repetitious and if it genuinely arises from the cross-examination")
- ↑ Moore, supra at 66
- ↑
Moore, supra at 66
See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567
- ↑ Moore, supra
- ↑ R v Horsefall, 1991 CanLII 5768 (BC CA), per Goldie JA
- ↑
R v Patterson, 2003 CanLII 30300 (ON CA), per Gillese JA, at para 49
- ↑
R v Lavoie, 2000 ABCA 318 (CanLII), per curiam
see also Prior Consistent Statements - ↑
see R v KT, 2013 ONCA 257 (CanLII), per Watt JA
see also Reply or Rebuttal evidence