Last updated: 2021-11-25
Henry Waldock
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.
Some courts are changing how you should address their judges. This table is a work in progress. Please let me know if you think there's an error.
| Court | B.C. | Ontario | Alberta | ||
| Supreme Court / Superior Court / Queen's Bench | “Justice” | “Your
Honour” or “Justice"
or "Justice <last name>". Deputy judges should be called “Your Honour” |
"Justice"
or "My Lord" or "My Lady" "Sir" or "Ma'am" |
||
| Judge of the Provincial Court / Court of Justice | “Your Honour” | “Your Honour”, or “Sir” or “Madam” | "Your Honour" | ||
| Justice of the Peace | “Your Worship” | "Your Worship" |
How to address counsel
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”
how to refer to the accused
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”
Good lawyers choose their words carefully. Listen carefully to the question before attempting to answer it. Make sure you understand it. If you don't understand the question, probably nobody else does either; ask for clarification.
It does not matter if everyone else understands the question. Only you bear the duty to answer truthfully. You can't answer truthfully if you don't understand the question. Therefore, you have the right to ask for clarification.
In my experience, judges appreciate the precision that comes from a clear question and a clear answer.
Therefore, seek clarification if you're not sure.
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.
Avoid qualifiers when you don't mean them.
"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 people seem to forget that they swore or affirmed to tell the truth. They start their answers with phrases that at best ring hollow, and at worst, suggest that other answers might not be true:
"Honestly, ..."If you hear yourself saying these phrases, stop saying them. One judge I know hates them.
"To tell the truth,..."
Avoid imprecise language and jargon.
"Agitated" - does this mean angry, tearful, frightened, or something else? Use more descriptive words: "loud", "verbose", "aggressive", "trembling", "sobbing"
"A scuffle/altercation ensued" - this could mean anything from a shouting match to a fist-fight. It leaves much to the imagination, and the defence lawyer will fill the void.
"Approached me in a threatening manner" - this begs the question - what was it that appeared threatening? Hands? Fists? Voice? Weapons?
"The accused was uncooperative" - this also begs the question - did he fail to answer questions or did he try to run away, or did he try to punch you and miss?
"I exited my police vehicle" You got out of the car.
"The subject was forcibly restrained" This suggests that you are ashamed of the force you used.
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."
Watch the judge.
If the judge's pen is still moving, slow down.
Take your time.
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!" |
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 ..."
In most courts, you should not read from your notes unless given permission.
In some contexts - often in traffic cases - the court will permit or even expect you to work directly from notes when giving your testimony.
Most folks have imperfect memories, especially for addresses, times and dates. That's why you make notes.
When asked about a detail that you have in your notes, you may say "I believe it was <number/date/time etc.>, I believe I have the exact <number/date/time ..> in my notes. May I refer to them for accuracy?"
Technically, you can refer to any document to refresh your memory, but you may need to explain what the document is, when it was made. Practically, judges prefer you to refer to documents that you wrote.
The use of force embarrasses some officers. It shouldn't. Most police officers are trained so thoroughly on how to use force to control situations that they react instinctively. In court, don't minimize your use of force, 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.
Don't be surprised if cross-examining counsel sound like they don't believe you. They are paid to disbelieve you. Defence counsel can attract a certain clientele by making a show of their doubts about your accuracy or professionalism.
Some counsel play the role to excess. They may use a harsh tone which would be inappropriate in any other setting.
Relax.
You will not persuade such a lawyer to believe you. Stop trying. Change your focus. The lawyer asks the questions, but the judge (or jury) receives the answers. Deliver your answers to the judge or the jury as if they had asked the same question, politely.
If the lawyer's tone bothers you, take a moment to repeat the words of the question, silently, in the back of your head. Except ... when silently repeating those words to yourself, do so in a polite and gentle tone. Then answer the words in the same polite tone.
This keeps you professional, and may expose or deflate the over-aggressive lawyer.
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 with 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.
Q: You are trained to take accurate and complete notes?
Q: You record all pertinent aspects of the investigation?
Q: You made your notes contemporaneously?
Q: If X doesn't appear in your notes, then X didn't happen?"
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.
Therefore, give your answer to the second question carefully.
The case isn't over yet. If a witness you interviewed before has more to tell you, then listen, record and report it to the prosecutor.
Observe the accused's demeanour and behaviour in the waiting area. Be prepared to testify about the differences in his appearance between the time of the offence and now.
during direct examination, the lawyer must not ask leading questions unless the answers are not in issue.
during cross-examination, the lawyers generally use leading questions in order to control the flow of the evidence, or to push you towards giving an answer that the cross-examiner wants.
never agree with a leading question if the answer it gives is not quite true.