Duhaime's Law Dictionary


Unfavourable Witness Definition:

When a witness called by a party merely gives unfavorable answers to questions posed during examination in chief, that party may not cross examine the witness but may still lead evidence in contradiction.

A rule of evidence in regards to trial protocol which exceptionally allows a litigant to lead their own witness as to “evidence in contradiction”.

A party in litigation cannot, generally, call a witness and then during the examination in chief of that witness, proceed to discredit their own witness.

There are three general exceptions to that: the unfavourable witness, the adverse witness and the hostile witness.

The category of an unfavourable witness was considered in a 1987 BC case, Skender v Barker:

“When a witness called by a party merely gives unfavourable answers to questions posed during examination in chief, that party may not cross examine the witness but may still lead evidence in contradiction.”

In Rupert Cross’ book Cross on Evidence, 6th Edition p. 270:

"At common law a party was allowed to contradict his own witness by calling other evidence if he was unfavourable, but this did not amount to a modification of the prohibition against discrediting his witness ..."

Compare with adverse witness and hostile witness.

REFERENCES AND FURTHER READING

  • Skender v Barker, 44 DLR 4th 106 (BCSC, 1987)
  • Cross, Rupert, Cross on Evidence, 6th Edition

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