Posts
Damage to the credibility of the first complainant to testify could weaken a "similar fact" argument based on all three complainants’ stories.
RENE JOHNSTON / TORONTO STAR Order this photo
The courtroom where the sexual assault trial of Jian Ghomeshi is proceeding this week, with a day off on Wednesday as requested by the Crown.
Damage done on Tuesday to the credibility and reliability of its first witness could leave the Crown on shakier ground in what’s known as a “similar fact” application, observers of the Jian Ghomeshi trial say.
After the Crown requested a delay after problems in scheduling witnesses, the trial is to resume Thursday. But the next witness remains a mystery.
It could be a friend of the complainant, whose testimony about learning of the alleged sexual assault at the time might help to rebuild the woman’s credibility, in turn helping the Crown to argue that similarities in the allegations of the three women should be considered by the judge.
Reliable corroborating evidence could help the Crown rebut an assertion by the defence that the allegations were fabricated after media reports came out about Ghomeshi’s actions, or that there was collusion among the complainants, said defence lawyer Daniel Brown, who is not involved in the case.
But if the Crown is unable to include her in a similar-fact application, it could significantly weaken the prosecution’s position.
“If the defence is destroying the credibility of one witness, they will have a harder time putting a similar fact application together,” said defence lawyer Cydney Israel, who is also not involved in the case and was speaking generally.
“It certainly is the Crown’s duty during a trial to assess and reassess the reasonable prospect of conviction,” she said. It happens rarely, but Crowns do sometimes end up saying before closing submissions that it just doesn’t have enough to prove guilt beyond a reasonable doubt.
“We often say the Crown takes their witnesses as they come. Sometimes the Crown has wonderfully consistent witnesses, credible witnesses who are able to communicate their evidence in court. Other times they have witnesses who leave out important details, or forget things or change important details out of their stories,” Brown said. “And there is not much a Crown attorney can do in any of those scenarios except to put them on the stand and ask them to tell the truth.”
One suggestion from University of Windsor law professor David Tanovich is to call an expert witness to explain the effect that trauma can have on memory.
“I think a lot of the inconsistencies can be explained by the neurobiology of trauma, which reveals that memories of traumatic events are often fragmented because of how our brains encode and consolidate such information,” he said.
The court needs to be properly equipped with that knowledge to adjudicate fairly, he said.
The Crown and defence lawyers also have different roles in preparing their witnesses to be cross-examined, Brown says. The Crown is not out to win the case; the prosecution represents the state. Crown attorneys also don’t have the benefit of disclosure and would not know, for example, that the defence had the emails sent from the complainant to Ghomeshi.
The defence has the benefit of disclosure and the evidence to be used in the trial itself, which can be used to prepare the client.
Legal counsel for sexual assault complainants has often been suggested as helpful in preparing them for cross-examination — though they won’t know what information about the complainant the defence has. The province has proposed a pilot project to offer free legal advice to sexual assault complainants.
“My personal view is that every complainant in any case should have access to legal counsel if they choose,” the complainant’s lawyer, Jacob Jesin, said Tuesday. “The Crown and the police, while they are doing their jobs, cannot offer anyone confidentiality. … Anything that anyone says to a Crown or a police officer must be delivered to the defence.”
Key Figures
More at thestar.com
Ghomeshi accuser says she has no regrets about coming forward
Man guilty of assault for dog attack on man with flare gun
One man has been found guilty of assault and his co-accused not guilty.
LIVE: Third day underway at Tim Bosma murder trial
Murder trial of Dellen Millard and Mark Smich has heard that victim's remains were found on Millard's property.
More sex assault charges against Toronto tutor
Ryan McCombe faces charges including sexual exploitation and making child pornography.
Next steps in the Ghomeshi trial are tricky for the Crown
Damage to the credibility of the first complainant to testify could weaken a "similar fact" argument based on all three complainants’ stories.
Tim Bosma’s murder trial hears thumbprint on truck matched accused man’s
Dellen Millard’s print was found on the pickup Hamilton man was trying to sell .
Video Ghomeshi witness’s credibility erodes, but main allegation stands untouched
Tough questions were asked about flirtatious emails and a personal bikini photo the witness sent Ghomeshi. But the defence didn't bring up the woman's account of receiving three hard punches.
Video Ghomeshi accuser says she has no regrets about coming forward
"I want to encourage other victims of abuse to ... not be afraid," woman says in a statement after two difficult days under cross-examination.Police seek witnesses after woman found dead in Rexdale complex
Sylvia Consuelo, 31, was found dead on Saturday, marking the tenth Toronto homicide of 2016.
Spadina shooting victim identified as Quinn Taylor, 29
Victim's mother remembers Quinn as a joyful father and passionate musician.
Video Ghomeshi defence pushes hard on inconsistencies in woman’s account
First of three women alleging former CBC host sexually assaulted them undergoes tough cross-examination on first day of trial.
Tim Bosma wondered if he should join accused for test drive of his truck, murder trial hears
Victim was abducted and shot at close range before his body was incinerated, Crown tells jury in opening address.
Murder victim Alfredo Patriarca was picked up on Rizzuto wiretaps: police source
Quebec probe found dead Etobicoke man was in contact with people tied to the crime family a decade ago.SIU investigating after serious accident at Peel police traffic stop in Mississauga
The Special Investigations Unit is on the case after a car swerved from a Peel police stop into oncoming traffic Saturday, seriously injuring two seniors.
Woman sexually assaulted in downtown laneway
Toronto police are looking for a suspect after a woman was attacked near Queen St. W. and Bathurst St. on Saturday night.
Car goes over DVP guardrail, lands in the Don River
The driver was able to remove herself and was taken to the hospital early Sunday as a precaution.
Car crashes through wall into kitchen of east end Toronto home
No one in the home was injured, according to a Toronto police spokesperson.
2 dead, 3 injured in downtown Toronto shooting
Gunfire comes early Sunday morning on Spadina bustling with post-bar patrons.
Pollster finds rapid drop in public trust in police
Polls taken nine days apart suggest Forcillo verdict and corruption charges are damaging the public's view of Toronto police.Oshawa teen dies in hospital one week after assault
Durham Regional Police say Tehganni Lewis died after being assaulted at a rooming house in Oshawa.
Murder charge laid in death of man at Brampton industrial park
Doru Robas, 53, has been charged with first-degree murder in the death of Sebastiano Sinisi, 51.
SIU clears Toronto police officer in shooting of fleeing suspect
Officer was part of a team responding to a spate of shootings at a community housing complex near Jane St. and Driftwood Ave. last spring.Three dead in two Ontario snowmobile accidents
Two snowmobiles went into Lake Pusey, leaving one dead; two others died in a crash on Go Home Lake.Hamilton cop found guilty of perjury, obstruction
Detective accused of urging an informant to plant a gun at a home so as to get a warrant.Man in serious condition after Mississauga shooting
Peel police and paramedics were called to the Hwy. 427 and Derry Rd. E. area around 11:30 p.m. Friday.
Longtime mobster Rocco Zito shot dead in his home
A son-in-law is charged in the death of Zito, 87, considered by police to be “retired” after a long mafia career.
Ghomeshi trial: The key players
A look at some of the key players in the trial of former CBC personality Jian Ghomeshi.
Cory Schneider of the New Jersey Devils and what he thinks of Lou Lamoriello
‹
›
Top News
- LIVE: Third day underway at Tim Bosma murder trial
- East end or west end: Where is Toronto's hottest real estate?
- Ghomeshi witness credibility erodes, but main allegation untouched
- Updated Brendan Shanahan pleased at reaction to new Leafs logo
- NEW Most Canadians enjoy a tipple, but many don’t know health risks: top doctor
- India’s Modi welcomes Wynne, urges Trudeau to visit
- Updated Lowe’s to buy Rona for $3.2B
- NEW Ordering a McDonald's kale salad? Just get the Big Mac
No comments:
Post a Comment