Cross-examination in domestic assault and sexual assault trials is often the key to victory. The trier of fact, being a judge or jury, is left with two competing versions of events and has to decide whether the case has or has not been proven beyond a reasonable doubt.
Successful cross-examination is necessary to expose weaknesses in the evidence of the accuser. By their very nature, domestic assault and sexual assault cases often become solely a credibility contest. In many cases, there are no forensics, no video or audio recordings, and the defence lawyer is left to challenge the word of the accuser.
Our job, as defence lawyers, in a credibility case is to expose: lies, exaggerations, half-truths, omissions, and all other forms of dishonesty. The task is to seek the truth and an honest witness will survive even the best of cross-examiners.
A traditional method of showing inconsistencies is through a process called impeachment. A defence lawyer will confirm the testimony of the witness and confront the witness with a previous inconsistent statement.
Inconsistencies are very important because they are an indicator that a witness is not being truthful. The logic behind exposing inconsistencies through impeachment is that the truth should not change.
Another form of inconsistency is to demonstrate the different witnesses have different versions of the truth. The logic being that if everyone is telling the truth – all witnesses’ evidence should be similar on the major pieces of evidence.
Minor inconsistencies do not have the same impact as major inconsistencies on materials issues. Judges and juries are wise to the fact that memory is not perfect and small mistakes or errors can be made while a witness is still being truthful. Many small mistakes, however, can cause a judge or jury to come to the conclusion that the witness is simply not reliable.
Many people delete old emails, discard old pictures, and destroy dated correspondence. These items can save an accused person when they are wrongfully accused. All of these items can prove useful in impeaching and exposing inconsistencies during a cross-examination.
Historical allegations can be a real burden for an innocent accused. The video in the condominium that would have shown an accuser leaving without injuries, years later, will have been deleted. The emails and voicemails that could have helped are gone.
Cross-examination is the best way to test the truthfulness of a witness. A trial is not a perfect science but it is the only way we can reliably test the truth. There are no real reliable lie-detector machines. Cross-examination is not perfect and will not expose every liar but it currently is the only tool available to a skilled defence lawyer.
The Canadian justice system is not perfect, however, it does its best to give accused people a fair trial.