In Canada, handling cross-examinations in sexual assault cases required a delicate balance. An experienced criminal defence lawyer must navigate the complex emotional dynamics while following the correct legal procedures, the rules of evidence, and fair questioning. The law provides certain protections to avoid retraumatization of the sexual assault complainant. For example, there are specific rules regarding the admissibility of evidence about the complainant’s sexual history, as outlined in section 276 of the Criminal Code, commonly known as the ‘rape shield’ law.
An effective cross-examination can reveal inconsistencies or challenge the credibility and reliability of an alleged victim or other witness, without compromising the respect and dignity owed to them.
An improperly conducted cross-examination will alienate a judge or jury and jeopardize a fair trial. The approach taken by defence counsel during cross-examinations in sexual assault cases must be carefully tailored to uphold justice while being considerate of the complainant.
Components of Effective Cross-Examinations
In sexual assault cases, the cross-examination process must be precise and coherent. Questions formulated to unravel inconsistencies in a witness’s testimony, often drawing on defence counsel’s experience, logic and common sense, factual patterns from leading criminal trial advocacy text books, case law, medical, and law enforcement textbooks are designed to effectively challenge the complainant’s credibility. It is crucial that the defence and prosecution anticipate these potential lines of questioning, focusing on details such as forensic evidence gathered by sexual assault forensic examiners.
Approaching the Complainant
When questioning the complainant, a sexual assault lawyer must employ a respectful yet thorough line of inquiry. Cross-examination questions should be designed to cleverly probe and clarify the events in question, avoiding any language that might be perceived as accusatory or disrespectful. It is vital to probe for inconsistencies, improbabilities, and matters which do not accord with logic and common sense in the testimony, while understanding the impact that trauma can have on memory.
Tactics for Handling Hostile or Reluctant Witnesses
When dealing with hostile witnesses or those who may be reluctant to testify, the aim is to elicit candid responses, which may require persistence and carefully constructed lines of questioning. Specific techniques, like repeating prior statements for confirmation or confronting the witness with evidence that contradicts their testimony, may be necessary. It is also essential to consider the delicate position of witnesses, such as children or those significantly impacted by the events, while striving to uncover the truth, expose inconsistencies, and demonstrate improbability.