Criminal law

The Victim

What is testimony?

Testimony is the act of recounting what happened to you or what you saw or heard in connection with a case that has gone to court. Testimony is given in court, in front of a judge, lawyers, the accused and the public. A witness is only asked to testify regarding events about which she has first-hand knowledge.

Testimony is used by the Crown prosecutor as well as the defence lawyer as evidence of important elements in a case. This evidence allows the judge to understand the situation before coming to a decision. Witnesses may be called to testify at different stages of the court proceedings.

Not all cases require witnesses. Quite the opposite is true: most cases involving youth end with an extrajudicial sanction or an acknowledgement of guilt. In such cases, it is possible that the victim will not have to appear in court. But, even if the accused pleads guilty, the victim may still have to go to court when the judge imposes a sentence. To find out more, read the Infosheets entitled Admitting or denying your guilt and Extrajudicial measures: Keeping adolescents out of court.

Who can be called to the witness stand?

Anyone who holds valuable information in connection with the case may be called to testify. The victim is often a key witness, so she is usually asked to recount her experience to the court.

The Crown prosecutor and the defence lawyer choose their witnesses on the basis of what they are attempting to prove. The witnesses are called to testify in court by way of a document called a subpoena. If you receive such a document, you are required by law to appear in court on the date and at the time and place indicated. If you do not appear and your absence was not authorized, the judge can issue a warrant for your arrest. A police officer would then be allowed to arrest you in your home or elsewhere.

In our example, Maria will probably be called on to testify about what happened to her while she was walking home from school. If the perpetrators committed other similar crimes, the other victims will probably have to testify as well.

Will a lawyer prepare the victim before she gives her testimony?

Usually, the investigating officer meets with the victim privately before she gives her testimony. This is done in order to prepare her for what will happen in court. At this time, the police officer will briefly inform the victim of the kinds of questions the lawyers may ask her in court. If she made a statement, the officer will give her a copy to read in order to refresh her memory. The victim should use this opportunity to ask any questions that come to mind, since this is probably the last time she will have the chance to do so before testifying.

It is important to keep in mind that this meeting is not intended to prepare answers to the questions that may be asked nor to suggest that the victim fabricate or make up answers. The victim is the only person who can testify as to what really happened! Also, remember that the lawyer for the defence can ask the victim questions about this preparatory meeting.

The Crown prosecutor rarely meets with the victim before the trial. If he does, the investigating officer will generally be present as well.

Is there a chance that the victim will run into the accused at the courthouse?

It depends. There are two possible scenarios:

• The accused is not in custody.
  
  In this case, it is possible that the victim will run into the accused in the hall while waiting to testify. However, the lawyer for the defence generally tries to limit contact between his client and the victim as much as possible. Police presence at the courthouse also ensures a certain level of safety.
  
  Additionally, sometimes the accused is prohibited from being in contact with the victim as a condition of his release from custody. The accused must take these conditions seriously, otherwise, he may face new charges.
  
  Moreover, some courthouses have a special private room where victims can sit with an advocate from a crime victims assistance centre while waiting to testify. Victims can contact the courthouse where they will be testifying to find out if such a service is available.
  
  
• The accused is detained until his trial.

Before the testimony, no contact between the victim and the accused is possible since the accused is being held in the court’s detention centre.

Will the victim’s testimony be given in front of the accused?

The general rule is that the accused is present during his trial. Therefore, the witnesses give their testimony in his presence.

If the victim is under 18 years old, the judge may allow her to give her testimony behind a screen or outside the courtroom by way of closed-circuit television so that she does not have to face the accused. The judge will allow this if he deems it necessary in order to gain a full and complete account of the facts.

If the accused is representing himself (i.e. he doesn’t have a lawyer), he’s not allowed to cross-examine the victim himself if she is under 14, unless the judge gives his permission. In such a case, the judge will name a lawyer to undertake the cross-examination.

In certain cases involving sexual or violent offences, if a witness or a victim is under 18 and her version of the facts has been recorded on video, this video may be shown to the court and can be used as testimony. The recording must have been made within a reasonable time period after the alleged offence was committed. The witness or victim must confirm that the testimony is theirs in front of the judge.

Even though the police generally have the necessary equipment to videotape statements made by witnesses, especially for sexual offences, this method is rarely used.

How is the testimony given?

Usually, before testifying, the court clerk will ask the witness to promise to tell “the truth, the whole truth, and nothing but the truth.” This a solemn oath. Before this happens, the judge will sometimes make sure that the witness understands what it means to give testimony under oath, especially if the witness is under 14 years old. Swearing an oath is very serious, and lying while under oath is a criminal offence called “perjury”.

Then the testimony can begin. There are three stages to giving testimony:

• The examination: At this stage, the lawyer who called the witness will question her.
  
  
• The cross-examination: Following the examination, the other lawyer will ask the witness questions. This step is primarily intended to cast some doubt on the witness’ credibility - the lawyer will try to show the court that the witness does not remember the facts properly, that she is biased, or that she is not telling the whole truth.
  
  
• The re-examination: If he deems it necessary, and with the judge’s permission, the first lawyer will re-examine the witness in order to clarify, correct, or explain what was said during the cross-examination. The witness cannot be re-examined on an issue that was previously dealt with during the initial examination and, the issue must flow from the cross-examination.
  It is possible, though rare, for the judge to ask the witness some questions as well. During the testimony, the lawyers or even the judge may jump in to make sure that the testimony is given in accordance with certain rules. These are technical legal matters, but keep in mind that if you are testifying and the judge jumps in or a lawyer says “objection”, you must stop testifying. The lawyers will debate the point between themselves, then the judge will come to a decision and give you instructions. You must wait for the judge’s permission before continuing to testify.

What kinds of questions might the victim be asked during her testimony?

The lawyers for both sides can ask whatever questions they deem necessary, so long as they are rationally connected to the case at hand. If they violate this rule, they risk being brought to order by the judge. There are certain principles that have to be followed when dealing with a victim. Basically, victims should be treated with courtesy and compassion and have their dignity and privacy respected. They should be subjected to the fewest possible number of inconveniences as a result of their participation in the youth justice system.

So, Maria may be asked to describe the incident in detail, the teenagers who assaulted her, where the assault took place, etc. In addition to asking the witness questions about her name, her age, her address and phone number, and her occupation, the lawyer completing the cross-examination can also ask her about any run-ins she may have had with the law in the past.

For the judicial process to run smoothly, the judge has to rely on the truthfulness of the facts before him when he makes a decision. So if you are testifying, it is very important to tell the truth. It may be difficult for you to remember all the details of the incident, especially if you are required to identify someone. Simply answer the questions that you are asked, and stick to the facts that you truly remember. Don’t make anything up, because the judge could catch you and then not believe anything else you say. If you cannot remember something or you are unsure of your answer, tell the judge. If you are honest and sincere, chances are good that he will trust you, and that is of the utmost importance.

Can the victim refuse to testify or to answer certain questions?

No. Once you are called as a witness, you are required to appear in court. While the accused can choose not to testify at his trial, a witness cannot ask someone else to testify in her place, nor can she require that the court use her written statement instead of hearing her testimony. After having reported the incident to the police, a victim may not always feel up to reliving her experience in court. A victim may also feel incapable of testifying on the stand, or may refuse to do so. But keep in mind that, regardless of what you may have heard, the victim cannot ask the judge to drop the charges; only the Crown prosecutor can drop the charges.

If a witness fails to appear in court, the judge can issue a warrant for her arrest. In court, refusing to testify or to take a solemn oath is considered to be “contempt of court” and can even amount to a criminal offence called “obstruction of justice”. During the preliminary enquiry, the judge can order that the witness be detained for eight days if she refuses to testify.

If the witness believes she has a valid reason for refusing to testify, she should consult a lawyer before the day of her summons to find out about her rights and obligations. To find out more, read the Infosheet entitled The victim’s lawyer.

Once a witness has begun to testify, she must answer all the questions that are asked, even if they seem embarrassing. If the lawyer for the defence asks an illegal question, the Crown prosecutor and the judge will make sure that the witness does not have to answer it. Remember that, according to the law, victims should:

• Be treated with courtesy and compassion, and have their dignity and privacy respected;
  
  
• Be subjected to the fewest possible number of inconveniences as a result of their participation in the youth justice system;
  
  
• Be informed of the proceedings undertaken against the youth who committed the offence;
  
  
• Participate in the procedures against the accused, and be heard;
  
  
• Be able to access the court record of the accused and possibly consult his other files (police files, government files, etc.);
  
  
• Be able to obtain compensation for the harm caused.

1. Côtécour, chambre de la jeunesse