Presenting Evidence in Court

Last updated: 2014-10-27
Henry Waldock

Purpose

Your job as a witness is not to "win" the case, but to explain what you saw, heard and did.  The judge does not receive a copy of your report to Crown. It's up to you to paint the picture so the judge understands what you know.

Fancy language is not required. Tell it like it was.

Courts value police officers for their objectivity. Be as forthright about evidence that assists the defendant as you are about the evidence that proves the case for the Crown.

Demeanour

Knowing what to Say

Etiquette

Supreme Court: “My lord, my lady”

Provincial Court: “Your Honour”

J.P. Court: “Your Worship”

By surname: “Ms Trusting” “Mr Grimes” or by role

Crown: “Crown Counsel” (not “counselor”)

“prosecutor” (don’t use the gender specific “prosecutrix”)

Defence: “Defence counsel” or “Mr Smith’s lawyer”

By identifying him/her in the court room: “that man there in the box, wearing the sequined shirt and pink trousers”

By surname (preferable)

By role (“the defendant”), BUT NOT “the accused”

How to Say it

Nobody likes a witness who plays games with the questions asked:

Q: Was he drunk?

A: What do you mean by "drunk"?

If there is ambiguity in the question, then respond helpfully:

Q: Was he drunk?

A: Well, he was in no state to drive a car, but he appeared to understand my questions because he answered them coherently.

"I believe that man there is the person I arrested." means something very different to the judge than "I recognize that man there as the person I arrested." The first indicates uncertainty, and based on it, the judge may acquit.

Some witnesses say that they "assumed" things which they actually inferred or deduced.  There's a big difference.

Suppose you walk into a large crowded room and see 6 teenagers near you.  You might assume that everyone in the room is a teenager.   This is jumping to conclusions, and can make you look silly.

On the other hand, from wider observations, you could reasonably infer that everyone is a teenager. The music might be loud and juvenile, and the locale might be unpopular with people older than 20.  If you mention these things, then your belief came from logic not wild guesses.

For example, if the smell of liquor on a driver's breath caused you to suspect the driver was drinking alcohol, then don't say "I assumed he was drinking".  The truth is you inferred it.

If, after a 911 call, you enter a residence and find one man with a long cut in his arm and another man holding a bloody knife, don't say "I assumed the man with the knife stabbed the other one".  The truth is, you deduced or inferred it.

Memory often works by lumping observations into conclusions.  But judges prefer to reach their own conclusions.  For example, if the key issue in the case is whether the subject was drunk, the lawyer wants to hear you say:

"When I encountered Mr Jones, he weaved from side to side as he stood facing me.  His eyes failed to track mine as he spoke with me.  He was looking at me, but he didn't seem able to focus on my face.  As he spoke, I could smell a fresh, yeasty beer odour on his breath.  He asked me "Whash de problem offish... offisher?"  He slurred other words too, which I did not write down.  He rambled in his conversation, and several times lost the thread."

Unless you made a special effort at the time to record these details, you will later only remember him as "drunk".  Give as many of the details as you can.  If you can't give details, explain why:

"I quickly formed the impression that Mr Jones was drunk.  Because my attention was focussed on whether he or the other people in the room had weapons, I did not make detailed notes of his sobriety."

Hearsay

Judges want the facts first-hand – from the people who observed the events, not second-hand, from people who heard from people who were there. For example, if you arrived at a motor vehicle accident, and the only way you could tell what time it occurred was because a witness told you “It happened at 9:00 o’clock”, then if the judge wants to know what time the accident occurred, the judge must hear from the witness, not you.

On the other hand, sometimes, the judge just wants to know what information you had at some point in your investigation.  If so, then you can tell the judge just what the other people said.

The law of what’s admissible hearsay and what isn’t fills books.  It's not your job to know the law.  But it is your job avoid testifying about what someone else told you until a lawyer specifically asks.


Do Don't
Q: How did you learn when the accident occurred?

A: A bystander gave me information about the time of the accident.

Q: How did you learn when the accident occurred?

A: A bystander told me the accident happened at 9:00pm.

Defence counsel: "Objection! Hearsay!"

Hide No Mistakes

We all make mistakes. If you really made a mistake in your investigation, you will impress the judge by admitting it up front. Get it out of the way as early as possible, so that the court can concentrate on the real issues in the case.

Don't concede you made a mistake just because some lawyer says you did. If the lawyer persists, you can move the case back to the facts:

"Maybe I should have done what you suggest. I'll be interested in this court's conclusions on that point. What I did do was ..."

Use of Force

The use of force embarrasses some officers. It shouldn't. Most police officers are trained so thoroughly to use force to control situations that they react instinctively. In court, don't minimize it, but explain the reason for it. A peace officer, armed with a belt full of weapons, should never permit an unruly or unpredictable civilian to take physical control of her or her weapons. If you can explain why, in the situation as you saw it, a lesser use of force would have exposed you or the suspect to a risk of greater harm, then there is no reason for embarrassment. You can then express your sorrow for the defendant for the injury that you were obliged by your training to inflict.

"Your honour, Mr T stands about eight inches over me, and he weighs a good 100 pounds more.  When he grabbed at my belt, he triggered a reaction drummed into me at training: never let anyone disarm you.  There isn't time to think.  If there is a danger that a suspect will take your weapon, you must overpower him immediately -- for his safety as well as your own.  Anything less than the flurry of blows I struck with my baton would have left me vulnerable to being disarmed by a more powerful assailant."

I don't know if this accurately describes your training.  But if it does, as a prosecutor, I'd be happy to hear this evidence.

Why didn’t Crown Object?

Crown counsel is not your lawyer. If the defence lawyer exposes defects in your evidence, Crown can’t stop the questions.

More likely, Crown sees that the defence lawyer’s angle of questions (although rude) does not expose any defects in your evidence.

Lawyers have an old adage: "When you have facts, argue facts. If you have no facts, argue law. If the law and the facts are against you, attack the other side." This is not a recommendation of tactics. It is an observation of the behaviour of lawyers when they are losing.

As a witness, it pays to be patient and helpful even to grumpy lawyers. If you are patient with a grumpy defence lawyer, and you give your answers as honestly as you can, the judge will resent the lawyer's behaviour, and treat you well.

Cross-examination

If you agree with each proposition, then afterwards the lawyer will say that anything that doesn't appear in your notes therefore didn't occur.

Waiting to Testify

Court Jargon

Some Rules the Lawyers Must Follow