EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 15, 2007

Blame Canada?: Comparing Impeachment of a Party's Own Witness Under Canadian and American Law

An assault case in Canada brings to light an interesting distinction between Canadian evidence rules and American evidence rules.  Steelworker Eugene Kelly, who sings in the Irish Band Crooked Jack, was found unconscious in a Pizza Pizza parking lot in Canada.  Police believe that Kelly was attacked by several teenagers, who pepper sprayed, punched, and kicked him repeatedly.  Two teenagers are on trial on charges of aggravated assault in connection with the attack on Kelly, and a third man is being tried separately in adult court.

After learning of the assault, police interrogated a third teenager, Michael Sylvester Gajgal, about the incident.  Gajgal initially signed off on a statement to police saying that he was not involved in the assault; after signing off, however, Gajgal blurted out, "All right, I kicked him once."  Gajgal now refuses to adopt the statement for police that he signed, claiming that he signed it while under duress.

Assistant Crown Attorney Nancy Flynn (somewhat similar to a prosecutor in the U.S. system) wants to call Gajgal as a witness, but she also wants to cross-examine and impeach him based upon the signed statement.  The Canadian rules of evidence normally don't permit lawyers to cross-examine or impeach the credibility of their own witnesses, but Flynn was able to argue successfully before Ontario Court Justice Bernd Zabl that she should be able to both call and impeach Gajgal on his signed statement.

American courts also generally used to preclude parties from impeaching witnesses whom they had called under the common law voucher rule.  Now, however, under Federal Rule of Evidence 607 and many state counterparts, the credibility of a witness may be attacked by any party, including the party calling the witness.  At the same time, most courts preclude a party from calling a witness for the sole purpose of impeaching that witness' credibility. See, e.g., United States v. Ince, 21 F.3d (4th Cir. 1994) (finding that the district court should not have allowed the prosecution to call a witness who could not remember a shooting for the sole purpose of impeaching her with her past statement that she saw the defendant shoot the victim).

I prefer the American approach because it takes account of the fact that witnesses can frequently provide testimony that both helps and hurts a party.  If a party is precluded from impeaching its own witness, it often will not be able to present essential facts about the witness which would allow the jury to better assess his or her credibility.



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