Analyzing Testimony

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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 a credibility contest or choice between competing evidence.

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.

Appellate Review

On appeal, findings of credibility cannot be interfered with unless the "assessments ... cannot be supported on any reasonable view of the evidence."

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

Where a legal error is made in assessing credibility, there is no deference and may require intervention.

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.

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

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

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 tel 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".

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.

Factors in Evaluating Credibility and Reliability

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

1. Inconsistencies
   1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial.
   2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses;
2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, or any other motive to favour or injure the accused;
3. Capacity: consider the capacity of the witness to relate their testimony:
   1. ability and opportunity to observe,
   2. ability to remember and
   3. ability to communicate the details of their testimony;
4. 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;
5. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
6. if recollection was recorded, consider the timing at which notes where made;
7. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
8. consider the manner of response, being whether the witness was forthright and responsive to questions or was the witness evasive, non-responsive, argumentative, or hesitant to answer (either at time of testimony or in prior statements);
9. 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 persons' 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, an 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.

Inconsistencies

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

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.

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 with key crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.

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. Suggesting that it is true unfairly bolster's 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.

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

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 are not based on actual memories but are 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 witnesses 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 on 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 reverseable error. The risks associated with misinterpreting demeanour is even stronger when they are simply sitting in the courtroom.

Intuition

There is some support for the proposition that judge 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".

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

Judge's must be very careful to avoid falling into an analysis which 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 absence of evidence supporting the theory.

A judge must not subject an accused's testimony 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 no a Charter voir dire.

No Presumptions for Truthfulness or Accuracy

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

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 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.

Police Notes

Police notes are no longer simply an aide-memoire simply used to refresh an officer's memory. Officers have an "inherent duty" to take notes.

Without notes an officer's credibility can be diminished and his evidence can be discounted.

Police notes must be independent and contemporaneous. This is essential to the reliability and integrity of the officer's notes. Notes are only for the purpose of assisting the officer in testifying at trial. Without notes the evidence of the officer can be "sketchy at best" and will be unreliable. There must be indication that the notes are the officer's independent recollection. An officer should not be using someone else's notes to refresh their memory or else they will simply be reciting hearsay.

As a general rule in an investigation involving multiple officers, notes should not be made after a collective debriefing.

The absence of note taking can go to the reliability of the officer's testimony. Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.

It is not an acceptable excuse to not have notes where the officer “would remember it”. Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation. This is not necessarily always the case however and the judge may still accept the evidence.

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.

The effect of an absence of notes will vary from case-to-case.

Failure to take proper notes on observations of impairment allows a judge to find that there were insufficient evidence to form reasonable and probable grounds.

Credibility of the Complainant or Victim

• Credibility of Complainants or Victims

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.

Related Topics

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

See Also

• Jury Instructions