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 also be the the purpose of [7]

The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".[8]

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

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.[9] If permitted, the judge must also permit the opposing counsel the firt to cross-examine further.[10]

The judge should generally not permit counsel to "introduce" on re-direct "new subjects" where the topic "should have been covered" in direct examination.Cite error: Closing </ref> missing for <ref> tag

Improper Re-Direct
Re-examination may not be used to improperly bolster credibility of the witness after impeaching credibility in cross-examination.[11]

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.[12]

A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.[13]

Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.[14]

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.[15]

  1. ↑ 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.")
  2. ↑ Lavoie, supra at para 46 citing The Law of Evidence in Canada, at p. 879
  3. ↑ R v Candir, 2009 ONCA 915 (CanLII), per Watt JA at para 148 ("The purpose of re-examination is largely rehabilitative and explanatory.")
  4. ↑ R v Moore (1984), 15 CCC (3d) 543 (Ont. C.A.), 1984 CanLII 3542 (ON CA), per Martin JA
  5. ↑ R v Moore, at 66 cited in R v Evans [1993] 2 SCR 639, 1993 CanLII 86 (SCC), 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), per curiam, at para 13
    Barboza-Pena c. R., 2008 QCCA 1133 (CanLII), per curiam, at para 36
  7. ↑ E.G. Ewaschuk in Criminal Pleadings and Practice Canada, 2d ed., in these words at p. 16.29, 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.")
  8. ↑ 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")
  9. ↑ 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")
  10. ↑ Candir, supra at para 148
  11. ↑ Moore, supra
  12. ↑ R v Horsefall, 1991 CanLII 5768 (BC CA), per Goldie JA
  13. ↑ R v Patterson, 2003 CanLII 30300 (ON CA), per Gillese JA, at para 49
  14. ↑ R v Lavoie, 2000 ABCA 318 (CanLII), per curiam
    see also Prior Consistent Statements
  15. ↑ see R v KT, 2013 ONCA 257 (CanLII), per Watt JA
    see also Reply or Rebuttal evidence

See Also

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