Criminal Law

In criminal proceedings, testimony is evidence

By Peter Small, AdvocateDaily.com Contributor

People charged with domestic violence are often surprised to learn that they can be convicted solely based on their partner’s testimony, Ottawa criminal lawyer Céline Dostaler tells AdvocateDaily.com.

She says people accused of domestic assault frequently come to her and say, ‘“There is no evidence that I committed a crime. It’s a he-said-she-said. How are they going to prove this?”

Dostaler, founder of Céline Dostaler Professional Corporation, tells them that once somebody takes the stand, their testimony becomes evidence.

“It’s difficult to comprehend because laypeople don't think of what somebody says as being evidence,” she says. “But when somebody testifies in court, that in itself is evidence. It's a matter of whether or not a judge decides their testimony is believable.”

The judge will measure the credibility of the complainant’s testimony, based on other evidence if any, and on how it stands up to cross-examination, she says.

“If the judge believes beyond a reasonable doubt that person's testimony and that all the evidence points toward the fact that something happened, he or she can convict the defendant,” says Dostaler, who frequently represents people charged with domestic assault.

However, if the judge can’t decide whether to believe the complainant or the accused — and both are potentially credible — he or she must acquit because they have reasonable doubt, she says.

It’s the same standard that applies to any other type of assault, Dostaler adds.

“We don't need physical evidence,” she says. “We don't need pictures of bruises to know whether or not the accused hit somebody and caused a bruise.”

Sometimes people are convicted without any physical evidence at all, Dostaler says. For instance, in historical domestic assault cases, a victim might tell police, “Oh, by the way, six years ago he pushed me as well.” Then the complainant may go on to recall other past incidents, she says.

Often there isn’t any DNA or other physical evidence in such historical assaults, but convictions still occur, Dostaler says.

“For an accused, it's difficult to understand why they would be charged, potentially even sent to jail, based on a person witnessing something that might have happened. It might have even been months or years ago, and there's no pictures, bruises, or videos to support the claim,” she says.

The defence has to try to show, through cross-examination, that there are internal inconsistencies in the complainant’s testimony as well as discrepancies with their previous statements, Dostaler says.

Sometimes prosecutors will try to introduce, as similar fact evidence, accounts of prior assaults even if the defendant has not been charged with them. That’s something defence lawyers must vigorously oppose, she says.

At times, the Crown will prosecute a domestic violence case even if the complainant recants their earlier statements and no longer wishes to participate, Dostaler says.

Under certain conditions, the Crown can cross-examine such a recanting complainant to try to show that although they are not credible now, they were when they made their original statement, she says.

Whether the defence puts the accused on the stand is a strategic decision, Dostaler says.

“I will prepare my client — no matter what, whether or not they need to testify — as to what to expect if testifying,” she says. That way they're ready if they do take the stand, Dostaler adds.

It's only after hearing the Crown's case that she and her client decide whether to testify, she says.

“Sometimes we might think the evidence will be strong. Then we hear the Crown's case, and it doesn't come out that way,” Dostaler says. “So, on a case-by-case basis, my client and I will decide if it’s appropriate.”

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