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Explainer: How are witnesses prepped in sexual assault trials?

Marie Henein’s cross-examination in the Jian Ghomeshi trial seemed to catch the Crown — and the complainants — by surprise. Chatelaine explains why.


 

This story, by Sarah Boesveld, first appeared on Chatelaine.

Last week, the defence dropped its bombshells one after the other. The bikini photo. The stack of emails combed for flirtatious banter. The “love” letter. When defence attorney Marie Henein finished cross-examining two complainants in the Jian Ghomeshi trial last week, an uncomfortable question lingered: Did those witnesses have any idea this barrage of evidence was coming?

Legal experts tell us that one of the big reasons sexual assault survivors don’t file criminal complaints is the lack of preparation and support they can expect to get before undergoing gruelling cross-examination. Those who do file complaints must testify in court as a witness to the crime. The Crown does not serve as the survivor’s lawyer. She can retain one for herself (or she might be lucky enough to get representation pro-bono), but most do not. Even when they do, lawyers for witnesses have no legal standing in court: They have no access to the prosecution strategy and no influence over the police investigation. They can’t stand up for their client in court and object to a line of questioning.

Chatelaine asked three lawyers and a sexual violence worker to explain the kind of preparation survivors might expect to get, with or without a lawyer.

Related: Anne Kingston on the ‘real conversation’ behind a shocking Day 4 reveal

The Crown’s job:

“Crown counsel are explicitly not attempting to get a conviction, but rather to put evidence fairly before the judge and jury. Defence counsel and other trial lawyers will go to great lengths in preparing their clients and witnesses to withstand intense and withering cross-examination. The Crown, however, must be much more circumspect and independent.

It’s improper to prepare a witness in any way that might mask or conceal the truth. But it is necessary to prepare witnesses emotionally for the daunting experience of testifying. It’s also important to thoroughly test the witness’s evidence in pre-trial preparation.

What the Crown cannot do is prepare witnesses to the point of shielding or immunizing them from probing questioning that might uncover an inconvenient truth harmful to the prosecution’s case.” — former Crown prosecutor Sandy Garossino.

If the witness does have a lawyer:

“Representing any witness in a criminal is about providing the witness with information throughout the criminal process [so they can] ask questions and get legal advice in a confidential manner. The Crown and the police are legally limited in the type of preparation they can offer to a witness, as they act on behalf of the state. Anything a witness asks or tells them is not confidential and must be turned over to the defence. When the witness has independent counsel, he or she knows that their privacy interests are being considered as part of the discussion.

Preparing a witness for court is mostly about reducing the fear of attending court and testifying. Most importantly, it is not about “woodshedding” them or shaping their evidence. Many witnesses are completely unaware of the types of questions that they will be asked and the difficult nature of a cross-examination. Just like completing mock tests in high school prepared you for the final difficult exam, engaging in mock cross-examinations can reduce the anxiety of testifying. This allows the witness to expect the tough questions so that he or she can provide an honest account from their recollection. A properly prepared witness knows that at the end of the trial, it is the judge or jury who makes the decision. They enter the courtroom with little fear, and no ulterior agenda. Their only goal is to tell the truth.” — Jacob Jesin, a criminal lawyer with Rotenberg Shidlowski Jessin Barristers & Solicitors, who represented and prepared the first complainant in the Ghomeshi trial.

Related: What’s really on trial in the Ghomeshi case

If the witness does not have a lawyer:

“Women who do not have access to their own lawyer are limited to whatever preparation the Crown has time to do with them. This is never enough. Few [Crowns] have had access to appropriate education about trauma, memory and women’s post-violence need to normalize what has happened, in such ways as maintaining contact with the abuser.” — Pamela Cross, lawyer, anti-violence advocate and legal director of Luke’s Place Support and Resource Centre in Durham Region.

“It is extremely unusual for survivors to have their own lawyer. There are programs attached to Crown offices in Ontario called Victim/Witness Assistance Programs [there are similar programs in other provinces and territories]. These folks are swamped. They will take you to the courtroom — if they have time — so you’re familiar, comfortable with the area. But they’re not able to prepare you for the possible ways that the defence is going to ask questions or produce evidence.” — Lenore Lukasik-Foss, chair of the Ontario Coalition of Rape Crisis Centres.


 

Explainer: How are witnesses prepped in sexual assault trials?

  1. What about these emails? It’s possible, I assume, that the defense had access to them through a third party application, and the witnesses aren’t aware of that? If so, what part of the law applies to that aspect? Because it’s a criminal case, or is that just standard?

  2. So Sexual Assault victims are treated as witnesses. Does that also apply to victims of spousal violence or victims of any kind of violence? If not…!

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