The right of a party calling a witness to show that the witness made a prior inconsistent statement.
A rule of evidence in regards to trial protocol. A party in litigation cannot, generally, call a witness and during examination in chief, attempt to discredit their own witness.
There are three general exceptions to that: the unfavourable witness, the adverse witness and the hostile witness. Where a party’s witness makes a statement at trial, under oath, which is inconsistent with a prior statement, the party may direct the witness’ attention to the prior statement.
The rules of court of most jurisdictions typically set out the circumstances which would allow this extraordinary initiative of on-the-record disagreement with one’s own witness.
Canada’s Evidence Act, v. 2007, at ¶24, reads as follows:
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.”
“Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.”
The British Columbia Evidence Act, at ¶16, states:
"(1) A party producing a witness must not impeach the credibility of the witness by general evidence of bad character, but if, in the opinion of the judge or person presiding over the proceedings, the witness proves adverse, that party may contradict the witness by other evidence, or, subject to subsection (2) and by leave of the judge or person presiding, prove that the witness made at other times a statement inconsistent with the present testimony of the witness.
"(2) Before giving the proof referred to (above), the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and the witness must be asked whether or not the witness made the statement."
Section 23 of the Ontario Evidence Act is much more succinct and reads as follows:
“A party producing a witness shall not be allowed to impeach his or her credit by general evidence of bad character, but the party may contradict the witness by other evidence, or, if the witness in the opinion of the judge or other person presiding proves adverse, such party may, by leave of the judge or other person presiding, prove that the witness made at some other time a statement inconsistent with his or her present testimony, but before such last-mentioned proof is given the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness and the witness shall be asked whether or not he or she did make such statement.”
An Ontario case, Boland v. Globe and Mail Ltd. considered what is now ¶23 as follows:
"The enactment covers in part rules of evidence theretofore recognized at common law and as to which there was no controversy. Its primary purpose was to remove any doubt as to the right of a litigant to prove under the conditions prescribed by the section, that the apostate witness called by him had made at some other time a statement inconsistent with his testimony at the trial. The prerequisite laid down by the Act is that the Judge must grant the party leave to prove that fact which he might grant if, in his opinion, the witness proved adverse."
In Wawanesa Mutual Ins. Co. v. Hanes:
"The word 'adverse' is a more comprehensive expression than 'hostile'. It includes the concept of hostility of mind, but also includes what may be merely opposed in interest or unfavourable in the sense of opposite in position."
Compare with unfavourable witness or hostile witness.
REFERENCES OR FURTHER READING:
- Skender v Barker 44 DLR 4th 106 (BCSC, 1987)
- Boland v Globe and Mail Ltd. 29 DLR 2d 401 (1961, Ontario Court of Appeal)
- Wawanesa Mutual Ins. Co. v Hanes (1961) 28 DLR 2d 386 (Ontario Court of Justice)
- Canada Evidence Act, RSC 1985, Chapter C-5, published at canlii.com/ca/sta/c-5/
- Ontario Evidence Act, RSO 1990, Chapter E-23, published at canlii.com/on/laws/sta/e-23/index.html