Top 10 Things Self Represented Litigants Should Know About Evidence at Trials
You should avoid representing your self at trial. Always seek legal advice and assistance from a lawyer. If you chose to represent your self at trial here our list of the top 10 things you should know about evidence at trial:
1. Questioning Witnesses
When witnesses are asked questions, certain rules have to be followed. One set of rules applies when you are asking questions of witnesses you have called. When a party questions a witness they have called, this is referred to as “examination in chief’. During the examination in chief of your own witnesses, you are not permitted to ask “leading” questions, unless you are questioning the witness about introductory things or matters that are not in dispute. A leading question is a question that suggests the answer within the question itself. For instance, the question “You did not go to the bank, did you?” is a leading question because it suggests its own answer; that the witness did not go the bank.
Another set of rules applies when you are questioning witnesses that the opposing party has called. This is called “cross-examination”. You may cross-examine the witnesses called by the opposing party, although there is no obligation to do so. In cross-examination you are entitled to put suggestions to the witness of what you want the witness to agree with (see above example of a leading question). Generally, the purpose of cross-examination is to test the credibility of the witness and to bring out evidence favourable to your defence.
After a witness has been cross-examined, the party that called the witness may, but does not have to, ask additional questions to clarify or explain matters that have come up in cross-examination. This is called re-examination. When it is finished, the witness’ evidence is complete.
Examination in chief always comes first, then cross-examination and then any re-examination. The trial judge may then ask questions of the witness.
It is important to note that questions asked in court are not evidence and do not form part of the evidence called at the trial. Only the answers to questions are evidence that the trial judge will consider.
Whenever you ask the witness a question, you should allow the witness to finish his or her answer before asking the next question. A record is made of everything that everyone says. If two people talk at the same time, it makes it very difficult to obtain a true and accurate record of the testimony of the witnesses.
Further information as to how to cross-examine a witness is set out below under the headings “Cross-examination” and ” Prior Statements”.
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.
During the cross-examination, it may helpful for you to ask questions about:
• the ability and opportunity that the witness had to observe the things he or she tells
• 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).
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?”
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.
3. Prior Statements
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.
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.
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.
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.
Do not try to prove a prior conflicting statement unless the contradiction in the evidence is serious.
4. Summoning Witnesses
If you are concerned that any of your witnesses will not show-up at court, you should arrange to serve them with a summons (Form 23). You will need to provide the necessary witness fee in accordance with Rule 23(4). Once called to testify, each witness will take the witness stand and be sworn or affirmed. If the trial judge has made an order excluding witnesses from the courtroom until they testify, you must keep your witnesses out of the courtroom until they have given their evidence (as already stated, you must also not tell them about evidence already given during the trial).
You should not call witnesses unless the evidence they can give the court will assist your case or contradict the opposing party’s case.
Always remind your witnesses to bring with them any documents or exhibits they might have relating to the case that you will want to enter into evidence when the witness testifies.
5. Documents as Evidence
Documents that are admissible as evidence are tendered as exhibits during the trial. In very general terms, a document is admissible if it is relevant to the case and is proven to be genuine, i.e. it is what it appears to be, or it is introduced pursuant to an agreement reached beforehand by the parties. Ordinarily, any document sought to be put into evidence and marked as an exhibit must be identified by a witness under oath. Public records and the like are admissible in accordance with the provisions of the Ontario Evidence Act. You can find this statute on the Ontario E-Laws website: http://www.elaws.gov.on.ca/index.html
You may use as evidence any documents that are admissible either when you testify or when you are questioning a witness who can identify and testify as to the nature of the particular document, for example, that it is a letter the witness received. If there is any dispute about the admissibility of a document, the trial judge will hear submissions and rule on the admissibility of the document. If you propose to present any documents in evidence, please bring the originals, if possible, as well as at least three copies.
6. Failure to disclose documents
If you failed to disclose documents to the other party, refused to answer certain questions during any questioning before trial that was done pursuant to Rule 20, failed to correct answers given on any questioning before trial, or failed to serve an expert report (see “Expert Witnesses” below), you will not be permitted to provide the information refused, the corrections, or the documents or report not disclosed, as evidence in your case unless you are given permission by the trial judge to do so. The failure to disclose evidence before trial could result in a decision of the trial judge to prevent you from calling the evidence, or the trial could be adjourned, or you could be ordered to pay costs.
7. Reading Opposing Party’s Answers into Evidence
Pursuant to Rule 23(13), an answer or information given during or following questioning of a party, pursuant to Rule 20, may be read into evidence at trial if it is otherwise proper evidence, even if the opposing party has already testified at trial.
The trial judge is entitled to question the relevance of all evidence and to control any attempt to introduce inadmissible evidence.
At any time during the questioning of witnesses by the opposing party, you have the right to object to the questions asked or to the introduction of documents put to the witness before they are marked as exhibits. If you object to a question, simply stand. When the trial judge calls upon you, state the reason for the objection. The trial judge will hear submissions from you and the opposing party about the admissibility of the evidence and the trial judge will make a ruling. If you object to a document being entered as an exhibit by the other party, the same procedure applies.
It is the duty of the trial judge to decide, on the basis of the established rules of law, what evidence may properly be put before the court. Once the trial judge has made a ruling, it is final in the trial and you must accept it and not continue to argue about it.
Normally, the only evidence a witness can give is what he or she personally saw or heard. Accordingly, it is important that you understand that you cannot give evidence or ask your witnesses to give evidence about what another person said if you are introducing that evidence for the purpose of proving the truth of the statement. This is known as hearsay evidence and it is generally not permitted, unless the other person who is alleged to have made a particular statement is the opposing party or a witness that will definitely testify at the trial.
Hearsay evidence may be admitted if the evidence is necessary and reliable.
• “Necessary” means the evidence is not readily available; for example, the person who made the statement has died or is seriously ill.
• “Reliable” means the statement is trustworthy because of the circumstances under which it was made.
There is an exception to the hearsay rule when the only purpose in introducing the statement of a person who is not going to testify is to prove that the statement was made, not that the statement is true. If that is the purpose of this evidence, let the trial judge know this when the evidence is introduced.
10. Expert Witness
You may call experts to testify on any issue if you have complied with Rule 23(23) in giving notice. Unless the opposing party consents to the introduction of the expert report at trial, you will have to call the expert as a witness at trial.
Expert evidence is usually introduced where the expert can provide information to the court, which is outside the experience and knowledge of the judge. Therefore, the expert must possess special knowledge that goes beyond that of an ordinary judge. The expert’s opinion must also be related to a fact in issue that, as a matter of human experience, will assist this court in resolving these issues.
An expert witness must first be qualified as an expert in his or her field, either because of his or her education and/or because of his or her experience and personal knowledge. If qualified, the expert will be permitted to express opinions in the field of his or her expertise. If you intend to object to the qualification of an expert witness, you should tell the trial judge. You will have an opportunity to cross-examine the expert on his or her qualifications and then to make submissions before the judge decides if the expert is qualified. If the judge decides that the expert is qualified, the expert will testify.
An expert does not replace the function of the trial judge as the trier of fact. The expert cannot make decisions about the various claims.
Remember it is never a good idea to represent yourself. Try to get some legal advice and assistance before chosing to conduct your own trial.
This blog was based in part on a hand out some Ontario Superior Court Judges provide to self represented litigants at the commencement of their trials.