Questioning Witnesses in a Supreme Court Trial

(transcript of video)

If you're representing yourself in a family law trial, you may consider calling witnesses to give evidence for you. In this video, we'll talk about choosing witnesses, planning questions, preparing your witnesses, what happens at trial, and cross-examining the other party's witnesses.

Choosing your witnesses

You don't have to call witnesses at all. You'll have a chance to give evidence yourself through your own spoken testimony. But if you know people who have first-hand knowledge of the events related to your case, their testimony can be helpful, and you can call them as a witness.

If you haven't made your Trial Preparation Worksheet yet, this is a useful tool to organize the facts you need to prove at the trial and how you're going to prove each one. You may find you can prove one or more of these facts by questioning a witness. Choose witnesses who can prove a specific fact or identify a specific document. They should have personally seen, heard, or otherwise experienced what they'll be describing.

Planning your questions

For each witness you decide to call, make a list ahead of time of the questions you'll ask them. There are rules about what you can and can't ask your own witnesses. One important rule is that you can't ask leading questions, questions that suggest the answer within the question.

Here's an example. A leading question would be, "You took care of the children during the respondent's parenting time five times last month, right?" This is leading because it suggests the answer in the question.

An acceptable alternative would be, "How often have you taken care of the children in the last month?" Plan your questions to start with who, what, where, when, why, how, or please describe. Avoid asking yes or no questions.

Some questions might guide a witness to identify a document that you wish to enter into evidence at trial. For this, you'd have the court clerk show the witness the document and then ask them to identify it and state that it's authentic.

Preparing your witnesses

Before trial, it's a good idea to go over your questions with your witnesses. This will give them a chance to organize their thoughts and prepare their answers. It'll also help you to hear their answers ahead of time. You don't want to be surprised by your own witness in court! But make sure you don't "coach" the witness on how to answer. For example, don't suggest that they give an answer that's different from the one they came up with on their own. If you don't think the way they're answering your questions will help your case, you can decide not to call them as a witness.

At trial

You can call your witnesses in whatever order makes sense to you. They'll go to the witness box and a court official will ask them to swear or affirm that their testimony will be the truth.

When your witnesses testify, you'll stand at the lectern and ask your questions. If you want to show the witness something, pass it to the clerk and don't approach the witness without the judge's permission. Make sure that your witness has finished answering the previous question, and the judge has had time to make a note of it, before you ask your next one.

Cross-examination

You can question any witnesses the other party calls, including the other party themselves. This is called cross-examination. If you can't talk to the other party's witnesses before the trial, prepare some notes on what you want to ask them about.

You cross-examine a witness right after they've been questioned by the other party. The purpose of cross-examining the other party's witnesses after they've testified is to point out any inconsistencies or holes in what they said, and to bring out information that could help your case. If you don't cross-examine a witness, the judge may accept their evidence as being true because you didn't challenge it, so make sure you use this opportunity.

One way to challenge a witness in cross-examination is to present a document that contradicts what they said. For example, you could present an email they wrote that tells a different story.

The rules for cross-examination are different than for questioning your own witnesses. Remember how you aren't allowed to ask your own witnesses leading questions? Well, in cross-examination, you are allowed to ask leading questions. For example, if you're cross-examining the other party, you could ask, "You were out of work from January to June 2012, isn't that right?" If you were questioning them as your own witness, you'd have to ask this in a non-leading way.

See our fact sheet Present your evidence in Supreme Court to learn more about questioning witnesses at trial, and explore more resources for people representing themselves in Supreme Court on our family law website.

Explore more resources at www.familylaw.lss.bc.ca

Jointly developed by the Legal Services Society and the People's Law School, with generous funding from the Law Foundation of BC

Filmed and produced by Michael Augustine
Narrated by Winnifred Assmann
Written by Kate Hunt
Legally reviewed by Erin Shaw and Justice Victoria Gray
Courtroom photography by Dan Daulby
Image selection and titles by Brian Goncalves

Special thanks to:
Terresa Augustine
The Law Courts -- Vancouver

© Legal Services Society, BC, 2015