Cross-Examining on a discovery transcript

The Format

You likely won’t have read it in your evidence textbook in law school.  It is almost an unwritten law, in that the format is available by asking seasoned trial lawyers or at educational seminars.  You’ll be surprised how often, during your career, trial lawyers will not know the proper way to cross-examine on a transcript.  The result is usually embarrassment and being instructed by the trial judge on how to do it.  Don’t be that counsel.

You have the transcript.  Hand a copy to the judge to follow along.  File a copy with the registrar, who will then give it to the witness.  Make sure it is a signed official copy, and not an electronic draft.

The format has different stylistic permutations, but usually follow the following outline:

  1. Do you remember attending to have your evidence taken at an examination for discovery on January 20, 2011?  (If there is a jury: For the benefit of members of the jury, an examination for discovery is a procedure where a party answers questions under oath, before the trial is scheduled.  The party’s evidence is taken down by a certified verbatim reporter, in the same way the evidence is taken down here, in court.)
  2. Do you remember that a verbatim reporter was present at your examination, taking down your evidence?
  3. Do you remember having sworn to tell the truth, before giving your evidence?
  4. Did you tell the truth on that day?
  5. Do you remember having been asked the following question and giving the following answer:  [read from transcript]
  6. You say you were telling the truth then.  Will you tell the truth now?
After you’ve once explained the discovery procedure to the jury, you won’t need to do it again.  Or if your opponent has already done so, simply remind the jury about his or her explanation.  The part about the verbatim reporter can also be taken out after the first time you run through the format.
If the witness denies having said the words, then you have to follow this detour:
  1. You deny having said that?
  2. How many months has it been since you were examined?
  3. Did you instruct your lawyer to correct the transcript?
  4. Would you like me to ask her honour for an adjournment to allow me to summon the verbatim reporter to bring his notes and tape recording?
A similar strategy can also be used in the case of pre-trial signed witness statements, in the case of non-parties.

Rationale

On the other hand, you usually won’t read or hear the rationale for the above format apart from the fact it is always done that way.  But you need to know the rationale, to be able to use the procedure as a matter of second-nature.  Here is the rationale.

The use of discovery transcripts is governed by Rule 31.11.  Under subrule (1), a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the adverse party’s examination for discovery.  So reading a transcript as part of a cross-examination of an adverse party does not become evidence.  If you bungle it, the trial judge will likely ask the jury to disregard the portion of the transcript you have read to the witness.  That will not only be embarrassing, but also hurt your client’s case or defence.

Rather, under subrule (2), the transcript may be used to impeach the deponent in the same manner as a previous inconsistent statement under s. 21 of the Evidence Act.  This means the witness has to adopt the previous statement as having been given (followed, if necessary, by questioning about the signature, witness, etc.).  If the witness agrees the statement was true, that also becomes evidence.  If the witness does not agree with the prior statement, the content of the statement does not become evidence (as it is hearsay), but the fact that the witness gave a different account at a prior time does become evidence going to the witness’ credibility.  The question asking the witness if he or she wants an adjournment to hear from the verbatim reporter about the certification and method of recording refers to s. 5 of the Evidence Act, for formal proof of a transcript.  Inevitably, the witness backs down and agrees that the words were recorded.  The witness is then left either to admit the fact you want him or her to admit, or leave the jury with the fact that the witness is telling two contradictory versions of the same story.  Either way, you have impeached the witness.

Terms of use / Mentions légales

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