Witnesses are crucial in lawsuits

Think of some high profile cases and imagine what would have happened if there were no witnesses. Consider:

  • Robert Pickton’s case, in which over 120 witnesses were presented;
  • Robert Dziekanski’s final video-taped moments at the Vancouver Airport and how the RCMP officers deliberately misrepresented their actions; and
  • Geoff Mantler’s kick on Buddy Tavares, which was witnessed and video-recorded by Castanet’s Kelly Hayes.

Witnesses were CRUCIAL in these cases to ensure that the truth was unearthed.

I can appreciate, though, that people can be hesitant to lend a hand… Sometimes, in criminal cases, witnesses can be nervous about retribution. That is an understandable (but often misguided) fear and one that should be discussed with police and Crown Prosecutors.

Sometimes, though, people are hesitant to be witnesses for other reasons, such as selfishness or carelessness. I’ll give you an example…

For some context, witness interviewing and preparation is a big part of my job. My initial witness interviews typically take around 15 minutes to complete. My questions are not hard or technical; I merely ask about someone’s observations or memories of an event, such as a car crash. If someone cannot remember something, then that’s perfectly fine – I don’t want someone “filling in the blanks” with false memories. And I appreciate that people have busy lives, so I often stay late in the office to contact witnesses (after the witness has finished work).

Now, in this example, my client slipped on some ice and suffered some injuries. Immediately after the fall, someone came upon my client to assist. Obviously, this person was a great position to comment on what the ground looked like when my client fell.

So, I call the witness. And, frustration ensued…

I asked, “Was the ground coated with ice or snow?” I asked, “Was the ground difficult to stand on?” After a few moments, the witness said, “This is why people don’t want to help other people”. That was VERY disappointing to hear…

Now, I am confident that the witness was having an “off day”, as they later provided helpful and useful information for my client.

Fortunately, this sort of situation is the exception, rather than the rule. I have conducted hundreds of witness interviews and I struggle to think of more than one or two uncooperative witnesses.

The reason I may sound so frustrated with uncooperative witnesses is because witnesses are CRUCIAL: they MAKE or BREAK cases. Think about it: if witnesses don’t come forward to describe an event, justice can easily be lost.

So, here’s a tip: if you are involved in an altercation, whether it be a landlord/tenant disagreement, a car crash, a fight, or a dispute involving your work, be sure to get the names/contact information of witnesses who can comment on what they saw or heard. It can make the WORLD of a difference…

And, if someone asks you to be a witness for their case, please take the time to help out. If you do, you would have just played a very important and crucial role in someone else’s plight for justice. And, at the very least, it’s good karma.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 7, 2013: Witnesses are crucial in lawsuits.

Some basic rules of evidence

Despite television and movie portrayals, it is not easy to have evidence (like photographs and documents) considered at trial (by a judge).

 

Evidence law is very complicated and that fact is one of the reasons that we have Small Claims Court. In Small Claims, the rules of evidence are ‘relaxed’, allowing more evidence to ‘get in’ and be considered. As a result, self-represented people can speak for themselves (without a lawyer guiding them through evidence law).

But, most court proceedings do not proceed in Small Claims with ‘relaxed’ evidence rules. Instead, most lawsuits proceed with the strict rules of evidence applying…

So, what are those rules? Well, there are A LOT of rules and there is no way that I can describe them all here. But, I can try to describe a few rules.

Last week, I discussed hearsay.

This week, I will discuss two more rules:

  1. some evidence (like documents or photographs) needs to be introduced through a witness; and
  2. you need to provide the court (judge) with original documents. I’ll discuss these issues below.

First, not all evidence comes from the mouth of a witness. Some evidence, such a bloody t-shirt or a photograph, is produced at trial for the judge to actually see and consider. In order for this evidence to be admitted and actually considered, it needs to be ‘authenticated’.

So, what does ‘authenticate’ mean? Well, it basically means a witness is required to say that the piece of evidence is what it intends to be.

Here’s an example: if a party wants to admit a certain photograph into evidence (like in the Vancouver Stanley Cut Riots), the party needs to call a witness (usually the person who took the photograph) to say that they took the photograph, that the photograph hasn’t been changed in any way, that they were in possession of the photograph from the date of development until trial, and that the photograph accurately represents what occurred at the scene (and that there is no intention to mislead).

Another rule is that original documents (and not copies) should be produced in court.

Why does this matter? Well, for one thing, copied documents don’t always tell the whole story.

Consider that there could be situations in which an original document was written on with different coloured pens. Such differences in pen colour could be indicative of certain important issues, such as whether or not a document was signed at different times or locations. Such evidence would be lost if a party were to rely on a copied document, which simply shows black and white.

But, if you have lost the original document, you may not need to ‘panic’. If the original document cannot be produced, the party may try to enter a copy if they have a reasonable explanation as to why the original cannot be produced (and the judge accepts that).

Hopefully, for your sake, you won’t ever have to ‘use’ these rules. To do so would mean you are going to court, which means you have either been hurt (physically or financially) or you have hurt someone else.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on August 14, 2012: Some basic rules of evidence.

What is hearsay?

What is ‘hearsay’? Not a lot of people know. This column will clear it up…

First, what is hearsay? Well, most people think that hearsay is any statement made by a witness (in the witness stand) that was said by another person. That is not true…

Put simply, hearsay consists of two things:

  1. an out of court statement; AND
  2. a statement offered for its truth.

So, if the statement was not made outside of court or if the statement is not being offered for its truth, then the evidence is not hearsay.

Also, what is the problem with hearsay? Why is hearsay typically excluded from court as evidence? Well, hearsay evidence is generally excluded because the opponent (opposing counsel/party) does not have an opportunity to cross-examine the person who actually made the statement, as someone else is providing that statement in court. In other words, the value of the evidence depends on the credibility of someone who cannot be cross-examined.

This may be confusing. So, ask yourself the following two questions to determine if the statement is actually hearsay: 1) Is the evidence (being given in the witness stand) a statement made by someone other than this witness in this witness stand?; and 2) What is the purpose of making the statement? Is the evidence being said for its truth?

Here is an example of something that it is hearsay: Jack is suing Nancy for damages after she ran his car into a lamppost. To prove losses, he offers an estimate for a $5000 repair cost signed by an auto-repair mechanic. The statement is “damages to the car were $5000”. The person making that statement, the mechanic, is not on the witness stand AND the statement is offered for the truth of its contents…that the damage to the car was indeed $5000.00.

Here is an example of something that is not hearsay: Nancy is charged with the stabbing death of Jack. She claims that she was provoked and takes the stand in her own defence. She states that moments before the stabbing, her friend, Obama, approached her and told her that Jack had assaulted Nancy’s son. The statement is “Jack assaulted Nancy’s son”. The person making the statement is Obama, who is not on the stand. So, it could be hearsay… BUT, the statement is not being offered for its truth. Its relevance lies not in the fact that Jack did indeed assault Nancy’s son but, rather, that it helps to establish that Nancy was provoked, whether or not Obama was telling the truth. This is not hearsay.

Also know that hearsay is sometimes allowed into evidence, anyway. There are several ‘hearsay exceptions’, which will be discussed in a future column.

Like almost everything in law, hearsay has a lot of wrinkles and is anything but simple.

And now you know…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on August 7, 2012: What is hearsay?

Eyewitnesses are unreliable

Eyewitnesses who consciously lie on a witness stand are dangerous to our justice system. But, potentially even more dangerous, are those eyewitnesses who think that they are being truthful (and are able to convincingly tell their story), but are actually recalling false memories.

Eyewitness testimony/memories are inherently unreliable.

 

Many people think of their memories as video recordings; they think that their eyes are like cameras and their memory is like a videotape recording. To remember something, they simply rewind the tape and watch it again. This perception, though, is completely wrong.

Memories are never as clear or detailed as the actual events; in fact, they are often highly distorted. Our minds play tricks on us.

How you ask?

Well, to start, memories about colour and speed are often distorted. People tend to remember colours as being brighter and more saturated (than the actual perception). Also, when recalling vehicle speeds, people tend to overestimate slow speeds and to underestimate fast speeds.

Also, memories typically contain gaps and, as a result, our mind will actually reconstruct events and fill in those gaps using other memories.

Specific to legal matters, it has been found that eyewitnesses who speak to other witnesses will use the additional information (from other witnesses) to fill in and add to their own memories.

Also, when people repeatedly recall an event, accuracy of the memory generally drops; some details are dropped from earlier versions and some new details are added.

You may be asking, “So what?” Well, this is important because eyewitness testimony is often given more weight than it deserves and is responsible for many wrongful convictions (of innocent people).

Consider Mr. Guy Paul Morin, who was given a life sentence in 1992 for the 1984 murder and sexual assault of his young neighbour in Queensville, Ontario. Eyewitnesses in that trial provided false memories, which led to his wrongful conviction.

Eyewitnesses in the Morin case expected the police to arrest the correct person and there was a lot of public pressure to find someone (anyone) responsible for the murder. Not surprisingly, their memories were rearranged (in their mind) in such a way that it benefited the police and the Crown.

In 1995, DNA testing exonerated Mr. Morin.

Everyone is capable of creating false memories. I see it often when interviewing witnesses and, of course, my job is to sort that out.

As a further illustration, while in law school, a professor, demonstrating the faultiness of memory, played my class a short video that portrayed a crime. Immediately after the video, we were all instructed to write down everything that we observed. Resoundingly, none of us were completely correct. Several weeks later, we were told, again, to recall our memories regarding the video. Again, none of us were correct and, even worse, some details were either removed and added.

Bottom-line: caution needs to be taken when relying on someone’s memories.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 8, 2012: Eyewitnesses are unreliable.

Can you spot a liar?

Can you spot a liar? I don’t think you can.

When a witness testifies in court, he/she is being judged on whether or not their evidence makes sense and whether or not it is supported by other evidence. Obviously, if it makes sense and it is consistent with other evidence, the witness will appear more trustworthy.

 

Witnesses are also judged by other factors, such as their speech and their overall demeanour. These factors are often used (in everyday life and in the courtroom) to decide whether or not someone is a liar. However, these factors often have nothing to do with credibility.

So, what are some of the ‘tells’ of a liar? We have heard them all before: not maintaining eye contact, looking down, talking fast, appearing nervous, or becoming angry.

But, are these good indicators? Answer: absolutely not, which is why lawyers and judges know better than to assess credibility wholly based on demeanour.

To start, witnesses are generally resistant to testifying, as court is believed to be a nerve-racking experience. [Thank you, American television.] So, nervousness and fast talking are obviously not good indicators of lying.

How about maintaining eye-contact? Is that a good indicator? Well, recall that direct eye contact is generally seen as a sign of trustworthiness and honesty. But, for some people (including many aboriginals), direct eye contact is improper and disrespectful (and is therefore not a good indicator of honesty).

How about being polite or appearing ‘level-headed’? For the most part, someone who appears ‘level-headed’ (and does not get angry) will appear more credible. But, consider that the actions of someone in the courtroom (i.e. by a lawyer, juror, or member of the public) could elicit a negative response from a witness (with a different cultural background), making the witness appear dishonest.

For instance, for most Canadians, there is no real issue with pointing to something with the second finger. However, using the second finger is very disrespectful to (and could infuriate) someone from Italy.

Also, for Middle Eastern Arabs, it is disrespectful to expose the soles of shoes or to talk with a large amount of space/distance between each speaker. These actions could agitate such a witness.

Also know that Japanese, Chinese, Koreans, and Vietnamese use different phraseology depending on a person’s class or station in life. For example, a sentence in Japanese can be said in twelve different ways, depending on the social status/age of the person speaking and the person being spoken to. As a result, the English language can be unintentionally offensive to a witness (causing the witness to become irritable and appear less credible).

Obviously, it is crucial for lawyers to consider these cultural differences before trial.

Also, consider that some people, for whatever reason, are not able to clearly articulate their story. Does that mean that they are not as trustworthy or honest? Answer: of course not.

Bottom-line: there is no guaranteed way to spot a liar.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 1, 2012: Can you spot a liar?

Your secrets are safe

In practice, I am often asked, “This conversation is just between us, right?” This column is intended to answer that question.

Put simply, what you tell your lawyer is confidential.

This confidentiality is both a ‘rule of evidence’ (protected by the court) and a professional duty (mandatory to all lawyers).

First, regarding the ‘rule of evidence’, the communications that a client has with a lawyer for the purpose of receiving legal advice are privileged (and cannot be disclosed in court/in a witness stand). This rule of evidence, excluding such communications from being heard in court, is referred to as ‘Solicitor-Client Privilege’. By virtue of this privilege, a lawyer cannot disclose this information even after the client dies.

Outside of this ‘rule of evidence’, there is also a professional duty that lawyers hold ALL client information in strict confidence (and not just those communications that were made for purpose of giving/receiving legal advice). This duty is discussed in the Law Society of British Columbia’s Professional Conduct Handbook, chapter 5.

For ease of reference, chapter 5 states that when a lawyer is required to produce information under the Criminal Code, Income Tax Act, or some other legislation, the lawyer must resist disclosure and claim that the information is confidential.

If a lawyer breaches their professional duty (by, for example, telling their friends about client information), then he/she is punishable by the Law Society. The Law Society works diligently to protect the public from negligent lawyers and will severely penalize and even disbar lawyers who act against the public interest.

This professional duty (to keep secret client information) extends to even disclosing whether or not a lawyer is retained/acting for a particular person.

To illustrate, unless I am engaging in some activity in which I have to state the name of a client, such as interviewing witnesses or appearing in court, the fact that the particular client has retained me (or our firm) remains completely confidential. I tell some clients that if I see them in a grocery store, I won’t say, “Hi”. Of course, this is often up to the client.

There are exceptions, though, when a lawyer does not have to keep a client’s secrets.

For instance, communications that are intended to further a criminal purpose (such as asking for advice on how to commit a crime or a fraud) are not protected. Lawyers are not allowed to provide such advice, anyway. Such communications do not come within the scope of professional employment. This, however, does not apply to previous crimes committed, such as ‘client confessions’; these communications are confidential.

Another example is the ‘public safety exception’, which states that privilege does not apply if there is an imminent risk of serious bodily harm or death to someone. To explain, if someone tells a lawyer that they are going to kill/hurt someone, such communications/secrets are not safe/protected (and for good reason).

Compared to any other professional relationship, such as doctor/patient, teacher/student, pastor/church-goer, or accountant/client, the secrets that you tell your lawyer are the most protected against disclosure.

Bottom-line: your secrets are safe with your lawyer.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 24, 2012: Your secrets are safe.