Canadian Criminal Trial Advocacy/Collecting the Evidence

Disclosure

A component of the collection of evidence may include requests for further disclosure from the Police or Crown Office.

Investigations

An investigation should be undertaken to discover additional facts and obtain additional evidence that may be used at trial or used in settlement negotiations.

Amongst the types of evidence that can be obtained by investigation include:

1. locate witnesses and obtain statements of eye-witnesses
2. obtain information on the background on possible crown witnesses (e.g. work history, character, reputation, criminal history)
3. obtain other information that could be used for impeachment
4. photographs of scenes

Taking Statements

Potential witnesses

All potential witnesses should give statements or at the least be interviewed. The net should be cast broadly, so the interviews should go beyond simply the parties to the case and their direct associates.

People to be contacted include:

• employees/employers of the parties
• friends of the parties
• relatives of the parties

Counsel should not shy away from talking to parties adverse to the client's case. Any witness may change allegiance over time.

By having a witness give a statement you are able to pin them down on their recollection.

Drafting a Statement

Tips for statements:

• should be in the witnesses own words
• should contain clear and specific details
• should be facts and not opinions.
• should not include argument
• should avoid hearsay evidence.

Example Outline of Issues to cover in the statement:
witness background

• full name, date of birth
• residence
• occupation

Facts

• Date and time of incident
• Location and actions of witness at time of incident
• Others present at the time of incident (include name, age, relationship, description)
• observations of incident
• reactions (verbal/physical) of each person
• outcome of incident
• harm or damage caused
• state of person or property prior to harm or damage
• whether anyone else could have seen what happened
• the witnesses' familiarity with the charges and how they would have known?

A warning should be given not to talk to anyone about their evidence.

Organizing Evidence

The evidence should be organized before you begin outlining the theory of the case and examinations.

The most straightforward manner of organizing information is chronologically. A chart showing the sequence of events can be quite useful. This is a preferred manner where the case consists of multiple witnesses discussing a single event.

Each event can be broken down into key sub-events. The testimony of each witness should be organized to match each sub-event. Each of these can be used as a topic in cross-examination. At each juncture, look at the non-testimonial evidence and see how it supports the testimony. Also consider the logic of the sequence of events and whether there is something abnormal about it.