Key Legal Insights: Understanding Browne v. Dunn Rule

I have an interesting topic for you today which every criminal defence lawyer has to consider and deal with at trial. And that’s the rule of Brown against Dunn, which is a famous case, which sets an evidentiary rule. And let me talk about it and I’m going to use the case let me use a sexual assault example. Okay. So the alleged victim’s testified that she’s given her version of events and her testimony took three hours examination-in-chief for example of the crown. Now it’s your turn as a defense counsel to challenge her veracity or credibility or reliability. And the rule of Brown v. Dunn says ultimately, defense counsel, if you want to advance a different version of events that the sexual assault did not occur and have your client testify about his or her version events which are different than the victim’s you need to put enough of your client’s version of events to that witness in cross so that they can respond. That’s ultimately it. In other words, you have to put at least the gjst or enough of your client’s version events. I’m repeating myself here so that they can properly respond. And that’s only fair, right? So it becomes tricky though, because you have to do it a certain way. And you don’t want to overdo it. Let me put it that way. And I’ll explain it this way. What I do what I cross examine a sexual assault victim, first of all, I try to challenge her, him or her because victims are both persuasions. I’m trying to challenge her I’m trying to affect her credibility, the reliability, create inconsistencies, create improbabilities and in doing that, I’m not necessarily putting my client’s version events through those many, many hours of testimony because they’re not going to admit it. Hey, if they admit some point along the way, that’s great. I’m going to highlight it. But the best technique to advance Brown v. Dunn is to challenge that witness, try and weaken their credibility and reliability. And then at the end of your case, because you don’t want them repeating their whole story again, you have to do this in a clever way and here’s the technique that I use, and other lawyer’s use. I say look, we’ve been through this, I have an obligation now, and we can do it in a summary way I know you’re going to disagree, to put my client’s version of events. I’m going to put some bullet points to you. You’re free to expand if you want, but we can get through this now quickly. And I go boom, boom, boom, boom. It’s just no, that’s not true. No, that’s not true so that’s the obligation. It’s a clever way of doing it. You’re attacking and challenging the witness all the way through and then at the end, you are complying with Brown v. Dunn, because if you start doing this during the course of the cross, it usually winds up in her just repeating her version of events or his or her version. Inexperienced defense counsel I see their cross examination go flat all the time because they’re so worried about getting the client’s version out and that’s not the way to attack. Hey, if they admit your client’s version of events as you go along, and you don’t even have to do Brown v. Dunn again, that’s wonderful, but the real world doesn’t quite happen that way. And so that’s the technique to get through and with this in mind, if you don’t do that, what can happen then? Well, this is a real problem, especially for I’ve seen some younger, more inexperienced counsel, this happened to or forget. If you don’t put your client’s version events at some point and I’ll do it at the end mostly. If you don’t do that, the judge has to give potentially can give little or no weight to your client’s evidence. So you just effectively maybe lost the case by not complying. So it’s such an important rule. It’s something that I’m always thinking of as I’m doing the case. And hey, I love it. If they admit things along the way, but obviously people just don’t start admitting thing. You tend to do it at the end of the case and that’s how to comply with Brown v. Dunn and then your client can testify. And now you’re the Judge is allowed to property weigh. Now, one other point the judge doesn’t have to and they can they can give little or no weight. They don’t have to give no weight but they can decide it’s discretionary. But it’s so important. I’ve seen some counsel really get burned if they don’t comply with this rule properly in our Canadian criminal court system. Thank you for watching our video. We are absolutely committed to bringing the best possible criminal and DUI educational videos. If you found this video helpful, please like it and subscribe to our YouTube channel. If you’ve been charged with a criminal offence in Ontario and require our services, please click on the link in the description below.