Witnesses are essential to a criminal trial. They are brought into court to say what they know about a matter based on their first-hand experience. Witnesses will be asked to swear an oath on the Bible or affirm (promise) to tell the truth. Most of the time, witnesses will testify while the accused is in the courtroom. For children or traumatized victims, the Crown may ask for accommodations to make testifying easier.
If you are a witness in a case you should not go into the courtroom before you are called in (unless you are the accused). This is so you are not influenced by other witnesses testifying. Once you are done testifying you are usually allowed to stay and watch if you choose.
Usually witnesses are not allowed to give their opinion when testifying. Expert witnesses are people with special knowledge and are brought in to help the court understand complicated issues that may be outside common knowledge. Experts can give their opinion on something within their field of expertise.
If the defence or Crown want to present expert evidence in court, they must:
- Get the expert to prepare a written report;
- Deliver this report to the other party before the trial;
- Notify the expert to come to court in the same way as for other witnesses;
- Pay any applicable fees or expenses for the expert witness; and
- Have the court accept the witness as being an expert.
Either party may contest the qualification of the other’s expert witness or argue about what they are allowed to give their opinion on. Ultimately, the judge decides whether the witness is qualified to be an expert and on what issues.
Should I testify in my own defence?
You have the right to remain silent. You do not have to testify. You do not have to provide any defence at all. Not testifying cannot be used against you. However, you may decide to testify. This is a major strategic decision in your case and you should get legal advice.
If you testify, the prosecutor can cross-examine you to try to show that you are not being honest or that you have changed your story. You will have to answer all the questions that the prosecutor asks you unless the judge decides the question is not proper. This cross-examination may include bringing out your criminal record and testing your credibility. The prosecutor may get evidence from you that can hurt your case. The prosecutor cannot cross-examine you if you do not testify.
Prepare your testimony. For each issue in your case think about and write down:
- The issue
- The point you want to establish
- The evidence
- The documents you want to present
If you testify you should:
- Tell the truth
- Carefully prepare how you will present your testimony
- Answer the Crown and judge’s questions
You should avoid:
- Arguing your case or explaining your legal issues while you testify
- Lying or misleading
- Speaking about your good character (if you do not what to risk evidence of bad character being introduced)
- Talking about issues unrelated to the case
This is a type of questioning during a trial when you ask questions to the prosecutor’s witnesses. You can cross-examine Crown witnesses, and Crown can cross-examine your witnesses.
In cross -examination you can ask closed questions, meaning questions with a “yes” or “no” answer.
You can use cross-examination to try to show the following:
- That the prosecutor’s witness is not believable or reliable. For example, you may be able to show a witness is:
- Biased—if the witness is a friend of the victim or holds a grudge against you, you can argue that the witness may not be fair.
- Not credible— If you have a copy of the witness’s police statement in writing and the witness now tells a different story, you can point this out to the court.
- Unreliable—you can question the witness about whether they wore glasses, drank alcohol, were close enough to see clearly, or whether it was too dark for them to see well.
- That the prosecutor’s witness has evidence to support your case.
- That the story of a witness is different from the story that you will present:
If a witness says something you disagree with, then you must question the witness about it. If you don’t, the judge will wonder why you did not ask such questions at the time and may not believe your evidence later.
Direct Examination is the type of questioning you are allowed to use on your own witnesses. Unlike with cross-examination, you are only allowed to ask “open ended” questions, as in questions that do not suggest a “yes” or “no” answer. Open ended questions usually start with who, what, where, when, why, and how.
Open ended questions
What did you do next?
You went to the bar right after work, didn’t you?
When did you arrive at the bar?
You arrived at the bar at 5:30pm, correct?
What did you see?
You couldn’t actually see much, could you?
To prepare for direct examination you should consider:
- What are the most important points you want to make with the witness?
- What are the key facts you want the witness to testify to?
- What questions will help you get to the key points and facts?
- What do you expect the witness to say?
When your witness takes the witness stand, it is usually a good idea to ask them some basic questions about their background. This can help feel more comfortable. Ask questions that help the witness tell their story. Most people find that telling their story chronologically is more natural.