Transcript Assessing Credibility - Edmonton`s Criminal Defence Lawyers

Assessing Credibility
• Assessing Credibility is the substance of
most trials.
• Credibility = Honesty + Reliability
• Issues of credibility and reliability tend to be
blended into a single analysis, they should not.
• Truthfulness on the one hand, on the other,
powers of observation, intelligence,
opportunities of knowledge, judgment, memory –
the trustworthiness of their testimony.
Demeanour
• Cannot be the sole focus of the TOF. It may give
hints about who is trying to be truthful, but little
to nothing about accuracy.
• The most dangerous witness is the honest, yet
mistaken one. We believe them because of their
conviction or emotion, forgetting that they may
not have been able to make, retain, or properly
recall the observations.
Point
• There is a distinction to be made between
veracity and truthfulness, and the ability of
the witness to relate evidence with
accuracy – ie. produce reliable evidence.
• While an incredible witness will not give
reliable evidence, a credible witness can
give very unreliable evidence.
• Both accuracy and truthfulness must be a
focus of the TOF.
• The accuracy of a witness’ testimony
involves considerations of the witness’
ability to accurately observe, recall and
recount the events in question.
Child Witness
• Corroboration requirements removed from criminal law.
• Does not relieve the TOF from being told to be careful
with such evidence, and consider its frailties, and the
danger of convicting without corroboration. A jury
instruction may be required.
• There are no automatic assumptions of unreliability with
respect to age or nature of the complaint. There must be
an evidential basis for it to be reasonable to believe the
evidence is unreliable.
Warning
• It is a matter of common sense that to
convict on the unconfirmed and unsworn
evidence of a child witness is fraught with
danger, and you must use your common
sense and all of the evidence before you.
B.(G.)
• While children may not be able to recount
precise details and communicate the where and
the when of an event with exactitude, this does
not mean that they have misperceived what
happened to them and who did it. … the
credibility of every witness who comes before
the court must be carefully assessed, but the
standard of the “reasonable adult” is not
necessarily appropriate in assessing the
credibility of young children.
R.(W.)
• Every person giving testimony in court, of whatever age, is an
individual, whose credibility and evidence must be assessed in
reference to criteria appropriate to their mental development,
understanding, and ability to communicate.
• In general, where an adult is testifying as to events which occurred
when she was a child, her credibility should be assessed according
to criteria applicable to her as an adult witness. Yet with regards to
her evidence pertaining to events which occurred in childhood, the
presence of inconsistencies, particularly as to peripheral matters
such as time and location, should be considered in the context of the
age of the witness at the time of the events to which she is testifying.
Eyewitness Evidence
• Deceptive Credibility, seemingly honest
and sincere. The evidence has emotional
and dramatic effect.
Factors - Observation
• Ability to observe, visual, aural.
• Internal characteristics of witness
(stressed, intoxicated?).
• External conditions: lighting, distance,
obstructions etc.
Factors – Information Retention
and Processing
• Mental abilities
• Interference of Media Coverage
• Interference of Discussions with Other
Witnesses
• Retention: how long has it been since the
event?
• Did the witness make a statement at the
time of the event? Any significant
discrepancies to their testimony?
Factors: Recall
• Method of recall
• Reliance on notes?
Credibility: Honesty
•
•
•
•
•
•
Character
Dishonesty
Record
Fabrication
Collusion
Financial or other benefit
• Bias
• demeanour
Demeanour
• Can be misleading
• Is it nervousness? Cultural difference?
Prior Statements
• Certainly a more objective way to
determine credibility is consistency (or lack
thereof) in prior statements
• The honest but unreliable witness may
appear credible, but the proof is in their
prior statements.
TOL/TOF
• It is clear that credibility/reliability problems
are for the TOF.
• The role of the TOL is to draw attention to
the problems in the evidence before them,
and to warn of the dangers of convicting,
without more.
Expert Evidence on
Reliability/Credibility: Marquard
• Credibility must always be the product of the judge or
jury’s view of the diverse ingredients it has perceived at
trial, combined with experience, logic, and an intuitive
sense of the matter. Credibility is a matter within the
competence of laypeople. Ordinary persons draw
conclusions as to whether someone is lying or telling the
truth on a daily basis … Credibility is a notoriously
difficult problem, and the expert’s opinion may be all to
readily accepted by a frustrated jury as a convenient
basis to resolve its difficulties. All of these considerations
have contributed to the wise policy of the law in rejecting
expert evidence on the truthfulness of a witness.