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Old 06-04-2011, 06:21 AM
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Cross-examination
[38] As described above, you may cross-examine witnesses called by the opposing party. Cross-examination is an opportunity for you to ask questions that are intended to draw from the witness something relevant, something that is important in deciding the case and that is of use to your case against the opposing party.
[39] During the cross-examination, it may helpful for you to ask questions about:<O></O>
• the ability and opportunity that the witness had to observe the things he or she tells<O></O>
the court;
• the ability of the witness to give an accurate account of what he or she saw and heard; and
• whether the witness has any reason to be biased or prejudiced, or has an interest in the outcome of the case (note that this is obviously true for the applicant and the respondent).
[40] Cross-examination is not an opportunity for you to argue with a witness or give evidence yourself. You should put your view of the facts to the witness in the form of a question. For example, you may ask the witness, "Do you agree that I did not see the children during the month of July?"
[41] In fact, if you intend to contradict a witness by the evidence given by you or a witness you intend to call, you should put that evidence to the witness during your cross-examination so that the witness can give his or her version of the facts. If you fail to do this, the trial judge may give less weight to the evidence that you lead that contradicts the witness because the trial judge will not have an opportunity to hear what the witness would havf3 said about this contradiction.
Prior Statements
[42] Witnesses may have made sworn or unsworn statements at a prior time. For example, the parties will likely have sworn affidavits, including a financial statement and may have been questioned prior to trial. You may use these affidavits, financial statements and transcripts when you cross-examine the witness who made the statement.
[43] If the witness said something different in the earlier statement or sworn evidence than what the witness is saying at trial, you may cross-examine the witness on the prior statement. If the witness said something favourable about your case in a prior statement, you can ask about that. There is a procedure you must follow to do this.
[44] First ask the witness if the witness recalls making the statement, swearing the document in question or if they recall attending for questioning and answering questions under oath (whichever applies). Next, read the prior statement in the document or the questions and answers from the transcript to the witness. Ask the witness to confirm that the statement was made under oath (if applicable) and then ask if he or she recalls saying it, and ask if it was true.
[45] If the witness says the earlier statement was true, the earlier statement is evidence for the truth of that statement. If the witness says it is not true, then the earlier statement may be used only to assess the credibility of the witness, by showing that the witness said something different in the past.
[46] Do not try to prove a prior conflicting statement unless the contradiction in the evidence is serious.