Wednesday, 7 January 2015

Collateral Evidence Rule to Prevent Rebuttal Evidence

Another note from Canada on the issues of collateral evidence. This one comes from an appeal court on the East Coast.

R. v. Ryan 2011, NFLD Court of Appeal:

33 A trial judge has a discretion to admit rebuttal evidence provided that the Crown demonstrates that it did not know of the evidence or could not have anticipated the need to call it during its case in chief, and provided that it relates to an issue which arose in the defence. (R. v. Krause, [1986] 2 S.C.R. 466; R. v. Aalders, [1993] 2 S.C.R. 482; and R. v. Lawes, [1997] 3 S.C.R. 694). These threshold criteria address trial fairness, in that an accused is entitled to know the case against him so as to fully answer it and defend himself. This fundamental right would be meaningless if the Crown were permitted to split its case so as to have the advantage of the last word. On the other hand, if an accused adduces evidence of which the Crown was unaware or for which the Crown did not reasonably foresee the need, the rules of fair play governing the search for truth at trial dictate that the Crown ought to have the opportunity to reply to it. Both the accused and the Crown must have the opportunity to hear and respond to the submissions of the other. (R. v. Krause, [1986] 2 S.C.R 466, at paragraph 16). If the Crown meets the threshold criteria, then the court must address other admissibility considerations. It is at this stage that the collateral evidence rule could operate to prevent proposed rebuttal evidence from being admitted.

34 An early expression of the rule against rebuttal on collateral matters is found in A.G. v. Hitchcock (1847), 154 E.R. 38 (Ex. Ch.). Hitchcock says that evidence which connects to an issue before the court is not collateral. The case also suggests that evidence which depends for its relevance entirely on the fact that it contradicts the testimony of a witness, is collateral. In practice, the rule against collateral evidence stipulates that answers given by a witness to questions put to him or her on cross-examination concerning collateral matters are treated as final and cannot be contradicted by extrinsic evidence (A. Byrant, S. Lederman, and M. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis, 2009)).

35 The reason for the collateral evidence rule is to avoid unduly prolonging litigation by proving and disproving facts which do not really matter to the substance of the litigation. In other words, the collateral evidence rule is a rule of trial efficiency.
36 The interplay between the rebuttal evidence rule and the collateral evidence rule was addressed by the Supreme Court of Canada in Krause. In Krause, McIntyre J. referenced collateral evidence in setting out the general rule relating to admissibility of rebuttal evidence at page 474:
The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.
... Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e. it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed.
(Emphasis added.)

37 A few years later, in R. v. Aalders, [1993] 2 S.C.R. 482 Cory J. spoke about collateral evidence in describing the test for admissibility of rebuttal evidence at page 498:
In my view, the crucial question with regard to the admission of rebuttal evidence is not whether the evidence which the Crown seeks to adduce is determinative of an essential issue, but rather whether it is related to an essential issue which may be determinative of the case. If the reply evidence goes to an essential element of the case and the Crown could not have foreseen that such evidence would be necessary, then it is generally admissible. Thus, if a statement is made during the course of a witness's testimony at trial which conflicts with other evidence relating to an essential issue in the case, reply evidence will be permitted to resolve the conflict.

38 Justice Cory went on to distinguish collateral evidence from evidence going to an integral element of that case at page 500:
The reason for permitting evidence to be led in reply in this case is not simply that the reply will affect the credibility of Aalders for all testimony in a case will, to some extent, be subject to testing for its credibility. Rather, it is the fact that the evidence goes to an integral element of the case coupled with the recognition that the Crown could not have foreseen the accused would testify in this way which makes the evidence admissible in reply. ...
(Emphasis added.)

39 Three years later in R. v. Lawes, [1997] 3 S.C.R. 694, the Supreme Court considered whether rebuttal evidence was relevant to an alibi defence or whether it was merely going to the accused's general credibility, in which case it would be collateral. In endorsing the decision of the Alberta Court of Appeal to admit the rebuttal evidence, Cory J. described how the impugned evidence was relevant at paragraph 2:The rebuttal evidence introduced by the Crown relating to O.H. was properly admitted. It went to the context and the essential fabric of the alibi defence ... The rebuttal evidence was clearly relevant to an issue raised in the defence.
(Emphasis added.)
40 Questioning on collateral matters, especially during cross-examination, is often helpful to triers of fact who must decide the credibility of witnesses and the reliability of their evidence. Few would dispute that questioning a witness about his or her previously told lies is admissible for the purpose of helping the court determine whether to believe the witness this time, or that context evidence given in the narration of a witness' testimony may be collateral, but nevertheless admissible because it facilitates the court's understanding of that witness' evidence. As well, several common law exceptions to the strict rule have developed over time in order to permit the receipt of collateral evidence when circumstances dictate.

41 In addition to requiring that the threshold criteria be met, the law limits the calling of rebuttal evidence by stipulating that it cannot be collateral; it must relate to a main issue in the case. Proposed rebuttal evidence relating to the general credibility of an accused or a witness is not sufficient to justify admission. If the proposed rebuttal evidence is relevant to a main issue, then the collateral evidence rule should not prevent its admissibility for such rebuttal evidence can assist the trier of fact in determining the main issue. If it relates to a main issue it is not collateral. This does not mean that all proposed rebuttal evidence that is not collateral must be admitted. Even if admissible, a trial judge may decide not to admit rebuttal evidence if the time, effort and expense involved in its admission would unduly delay the trial or involve the parties in proving and disproving matters of marginal importance. There are degrees of relevance. The more important the proposed evidence can be to a main issue in a case, the more likely a trial judge will exercise his or her discretion in favour of admissibility even if it takes time. It depends.

Monday, 3 March 2014

Monday, 8 April 2013

Collateral Evidence on Witness Credibility

Legal Definition for applications in the US are a bit different, but the idea remains the same:
A collateral matter is evidence solely affecting the credibility of a witness. While questioned about a collateral matter, the party cross examining the witness is bound by the witness's answer to matters solely affecting credibility. It precludes the cross examiner from calling other witnesses or producing documentary evidence to contradict the witness.

Thursday, 16 February 2012

Credibility as a Collateral Issue

Another decision from a Canadian court in Ontario pertaining to the issue of collateral evidence.

R. v. Emmanuel, 1997, ON General Division:

8 I shall begin by saying that, in my view, and I don't think there is much doubt about it, credibility is always a collateral issue. The collateral evidence rule, put simply, is that the cross-examiner can ask just about any question he wishes relating to credibility but is stuck with the response. In this case Mr. Hinkson does not wish to be stuck with the response.

9 An exception to the collateral evidence rule is, of course, that provided by the Canada Evidence Act which permits a witness to be cross-examined as to a previous conviction and, in the event of denial, enables the questioner to prove that conviction in the normal way. Previous conviction is as much a collateral issue as previous conduct which did not result in a conviction, but there is a special statutory exception.

10 The collateral evidence rule is judge-made law and, in my view, if strictly applied, may prevent an accused person from making full answer and defence and, therefore, one ought not dismiss offhand a line of questioning on the basis that it is simply collateral. The collateral evidence rule is simply a rule of practical application to prevent cases from wandering on forever and ever.

Hopefully some of these cases provide some additional insight and clarity on the topic.

Wednesday, 1 February 2012

Application of the Collateral Evidence Rule

The application of the collateral evidence rule can vary depending on case and judge. Obviously circumstances will yield different outcomes. For example, here is a case from Ontario, Canada, pertaining to evidence introduced by the defence. [Emphasis mine.]

R. v. Deschamps; 1994; ON General Division

Application of the Collateral Evidence Rule

4 In a nutshell, the defence argues that the evidence he wishes to call does not go to a collateral matter, but to the issue of the complainant's propensity to fabricate evidence of abuse by the accused. He contends that because the complainant made similar allegations against the same man, in the same statement, regarding events in their continuous relationship, questions going to the issue of fabrication are not on a collateral matter. Simply put, he wants to call evidence to prove that the complainant lied in the statement as to one significant fact, namely an injury or injuries resulting from one assault by the accused, and therefore probably lied as to other facts including the details of the series of incidents themselves.

5 At first blush the argument is appealing. Upon consideration of the case law, however, there does not appear to be any authority which would allow me to characterize the proposed evidence as anything other than an impermissible contradiction on a collateral issue as to credibility. In addition, the rationale behind the "collateral evidence rule" - namely to prevent rebuttal evidence which is largely irrelevant, and expands the inquiry beyond the charge before court - is in my view applicable to the case at bar despite the similarities of the allegations.
6 I will first briefly review the cases relied upon by the Crown, and then attempt to distinguish the most important of those relied upon by the defence.

7 In the 1992 decision of R. v. Riley 11 O.R. (3d) 151, the Ontario Court of Appeal applied the traditional rule to a case of sexual assault in which the defence proposed to show that the complainant had fabricated an allegation of sexual assault against another man. Specifically, he cross-examined her concerning the allegations, then proposed to call the man to testify that he was charged and acquitted. The Court stated at pp. 154 - 155:
"The only legal basis of which we are aware that would justify the cross-examination of this complainant along the lines suggested would be in order to lay the foundation for a pattern of fabrication by the complainant of similar allegations of sexual assault against other men. This should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false ... The problem of proving falsity in these circumstances is considerable. To have Roswell testify that her complaint to the authorities about him was false, would only introduce a collateral issue of credibility which would be as difficult to resolve as those contained in the complaints of which the trial judge was seized. We agree with counsel for the Crown that this cross-examination was on a collateral matter in that it was essentially an attack on the general character of the complainant".

8 In a somewhat similar decision, R. v. Rattan, 68 C.R. (3d) 84, the British Columbia Court of Appeal prevented an accused charged with sexual assault from calling evidence which allegedly would have shown a propensity on the part of the complainant to make false allegations of sexual assault against men of East Indian race. The court ruled that the contradictory evidence can only be called if it is directed to an earlier answer which is relevant to an issue in the case:
"However, it does not matter whether the question of categorization is directed to the earlier evidence or the new evidence. If the new evidence goes to general credibility alone, it should not be permitted, but if it goes to the credibility of specific earlier testimony on a matter relevant to an issue in the case, it should not be rejected as being collateral".

9 The Court goes on to consider, and reject an argument that the previous incident was markedly similar, and thus capable of showing a true propensity to fabricate. Similarly, in Riley the court determined that a foundation had not been laid for allegations of a "pattern of fabrication" by the complainant. In another decision involving alleged fabrications of prior assaults, R. v. B.A.W., 59 O.A.C. 323, the Supreme Court of Canada rejected evidence of the alleged fabrication on the ground that prejudice far outweighed relevance.

10 In comparing the argument before me regarding propensity to fabricate to those put forward in the above cases, I find that the proposed evidence is even less probative of credibility regarding the issue before the court. In each of those cases, the proposed testimony dealt with allegations of prior assaults, albeit by other men; in the case at bar, the evidence merely addresses the question of the extent of observable injuries caused in a prior assault. In other words, the collateral matter, the degree of prior injury, is even less relevant to the issue of whether the May 1993 assault took place than the collateral issue of fabrication of prior assaults was to the charges before the courts in those cases. The defence assertion that he has confirmed that the doctor will deny seeing teeth or choke marks does not make her observations any more probative of a propensity to fabricate allegations of assault.

11 Defence relied strongly on the case of R. v. Gonzague, 4 C.C.C. (3d) 505, (Ont. C.A.) in which the court allowed cross-examination of a Crown witness on outstanding fraud charges. The court applied the normal rule, allowing the cross-examination on unrelated matters going to general credibility, but in no way dealt with an attempt to call rebuttal evidence. He also placed strong reliance on R. v. Krause 29 C.C.C. (3d) 385 (S.C.C.), wherein the accused alleged police harassment, and the Crown attempted to call rebuttal evidence. In a judgment which in my view supports the position of the Crown in this case, the court refused the request, on the grounds that the matter was collateral and irrelevant to the issues in the case itself.

12 The cases of R. v. P.N.P. 81 C.C.C. 3d 525 (Nfld. C.A.) and R. v. Speid 42 C.C.C. (3d) 12 (Ont. C.A.), similarly relied upon, deal in my view with evidence going to the issues of oblique motive and bias of a witness, rather than mere contradiction on a collateral matter.

13 As I stated initially, not only the case law, but also the rationale behind the collateral evidence rule supports exclusion of the doctor's evidence. Hypothetically, the denial of observation of teeth marks by one doctor could prompt the Crown to seek to adduce evidence of contrary observations by others or even expert evidence on the duration of such marks; in other words, the inquiry on a collateral issue could expand and become increasingly irrelevant. While the doctor will apparently deny the existence of choke marks, the complainant herself did not insist that the alleged choking left marks; it therefore seems likely that the related questions will have to go beyond mere observations into the likelihood of marks occurring in order to be of any value.

14 Despite the initial appeal and creativity of the defence submission, it must fail as it is not supported by jurisprudence or the rationale of the traditional rule. The issue of the existence or extent of certain injuries is no more than a collateral matter going to general credibility, and counsel is left with the answers he got in cross-examination. The doctor will not be called.

Tuesday, 10 January 2012

Collateral Matters with Witnesses

In the matters of examining witnesses there are collateral matters that factor into the admissibility of extrinsic evidence. For additional details on collateral matters when dealing with witnesses visit Lexis Nexis.
[D] Extrinsic Evidence; “collateral matters” Even if a proper foundation had been laid on cross-examination, extrinsic evidence of a prior statement was admissible at common law only if it did not involve a “collateral matter.” The exact definition of what constituted a collateral matter was unclear. Rule 403 should control.