I want to talk to you today about how I cross examine an alleged victim in a sexual assault trial. So first of all, you’d be shocked at how long it takes to properly prepare a case to be able to cross examine a victim to show or an alleged victim to show that there’s reasonable doubt and create a reasonable doubt and a judge or jury’s mind it really starts in the very first day of preparation of the case. So you have to realize that in any sexual assault trial, there’s a whole bunch of evidence has given us and one of the key pieces of evidence is the victims videotape statement which often will be one, two, three hours of evidence and video which is transcribed and that’s really my blueprint, coupled with my clients version events of how I’m going to attack this witness, how I’m going to show this reasonable doubt. So, I develop a plan where I cross examine in a certain order and the most important thing is you need to start with your past material first. I mean, right out of the gate, you have to show that witness that who’s boss, you know, that there’s an inconsistency here. So I tend to start like, when the witness testifies in chief, when the crown calls him, I will think of, in the 300 page transcript, which you need to have index and memorized, by the way, I’m going to pick out every single inconsistency and I’m going to hit them with the hardest right out of the gate. There’s always inconsistency even under a truthful witness, but especially in an untruthful witness, you can you can destroy them an untruthful witness right off the hop. So prior inconsistent statements are very important. There’s no question, you’ve got and there’s a technique for presenting those that I mean, I won’t get into it, but there’s a way to do it, which is devastating to show that the witness is lying. There’s also prior inconsistent oral statements. In other words, the victim may have made a statement to the police where they have their notebooks or another person orally which you have in writing, which you confront at the trial. Then you have to think about what are all the improbabilities in their statement, things that don’t accord with common sense. You’re cross examining about that as well and going through it carefully. You’re presenting rhetorical questions to them in a in a leading way that show that their story doesn’t make sense. You’re then working in their version of events to create more inconsistency. And if you if you see a good lawyer cross examine, it’s a real art form. It’s learned but it’s not a science, but it’s a real learned behaviour. It’s leading questions, leading a person who down the garden path and I’ve seen good lawyers, really destroying, very bright people who are not prepared to testify. They don’t know what’s hitting them. And you know, not everyone’s telling the truth in a courtroom and cross examination is the greatest engine to expose lie. There’s no question with that. If you’re facing a person who’s a trained cross examiner, and you’re lying, watch out because they are going to expose it. If you’re a truthful witness, you know, he’s tough to, believe me. I mean some of these lawyers that I’ve seen and you know, I’ve been practicing 33 years as well and done hundreds, hundreds and hundreds of trials and dozens and dozens of sexual assault trials is not fun facing good cross examiners. So it’s all planned in a certain way. You got to present the bias they have. You got to present any motives to lie, that you, they have against your client and maybe affidavits from family court proceedings that are maybe they may be mad, maybe breakups, me all sorts of things. You present this an intelligent way, all leading to a crescendo down, starting with the best material first, but you have other good materially down. Ultimately there’s a rule, it’s an old English case called Browne v. Dunn, and I do this at the end of my cross, you ultimately will present your version you have an obligation to do this by the way, if you have to present you have to piece by piece and at least in a summary way, present your clients version of event to the witness. I do that in a summary way, in kind of a clever way, including all the admissions that she makes, helpful admissions as well. So, it’s a real art form. It has to be planned. It takes hours. I can’t even tell you dozens and dozens of hours to prepare a proper thorough cross examination that’s going to potentially win a case and to watch it seen done by good lawyer something to see. I’ve seen tremendous lawyers in Ontario do this and it’s not fun, it’s not fun for truthful witness, it’s less fun for a lying witness and the gray areas in between and believe me, in sexual assault cases, it’s not all cut and dry. There’s gray areas. There’s many complainants, of course are telling the truth, but don’t think that there’s not lying complainants. Who come forward, who have motives to lie, biases in this province. And the other thing is not, you know, some complainants will exaggerate, yes, that, yes, they were sexually assaulted. But, you know, it wasn’t as bad as they’re saying they were. So, it’s important that as a lawyer in those cases as well, to at least expose that. Instead of facing five years in jail your client should be facing two, because it wasn’t as bad as the person says, to his bad to believe me. But anyway, this is what we do for a living. It’s a learned behaviour. It probably takes a good 10 years to learn how to cross examine properly, and it’s all organized. And I call this a chapter method of cross examination, a methodology A, B, C, D E. And despite all this planning, there’s a great deal of spontaneity to it because what happens in the midst of the courtroom is something happens and you have to have the skill to turn on a dime. To deal with that situation. And I’ll give you one of many examples. You know, what if, you got eight boxes of materials, there’s transcripts, witness statements everything and you haven’t planned for something, and that person says A and you know, in one of those eight boxes of 4000 sheets of paper, that they somewhere said B, well, you have to find that in three seconds, or you have to react to something I mean, it’s it takes time . I mean clients ask me why we charge the fees we do. I said well, you go find that piece of paper three seconds on 8000 sheets, have at it. So anyway, that’s what it takes to win these cases. I just want to mention to you that we have offices across the province. We have offices in Toronto, London, Kitchener and Windsor with lawyers to serve you. And if you need a good sexual assault, Toronto sexual assault lawyer, sexual crime lawyer, any type of sexual crime we handle and enter other offices too. Give us a shout, and we’ll do the best we can for you and get you the advice you need and try to give you the best result we can.
