Evidence is the information you use in court to convince the judge to make the order you've asked for. The judge decides what evidence can or can't be presented in (shown in) court.
One way to present your evidence is by using witnesses to give evidence about your case. You can also give evidence yourself.
But only people who have some personal knowledge of the events can give evidence.
That means a witness can only talk about what they actually saw, heard, did, or said (unless they're an expert witness). Usually they can't use hearsay.
Hearsay means quoting something another person said.
Usually hearsay's not allowed to be admitted as evidence, but sometimes it's okay for a witness to quote what another person said.
For example, evidence at a family trial can use hearsay in these situations:
- The person quoted is the other person involved in the case (for example, your ex-spouse) (the law calls them the other party), and they were admitting a relevant fact. You can say, "My ex-wife said on January 5, 2010, that she took my camera."
- The person quoted is a child and the court gives permission for that evidence to be presented as hearsay. This means the child won't have to come to court as a witness.
How do you prepare your witnesses for trial?
Get together with your witnesses before the trial and go over:
- exactly what evidence they'll give,
- any documents you'll show them during their testimony (what they say in court),
- the types of questions you'll ask them (called examination),
- the types of questions the other person might ask them during cross-examination,
- the proper way to answer questions in court (see Tips for witnesses, below, for more about this), and
- how to behave in court.
Preparing your witnesses doesn't mean:
- telling them what to say, or
- getting them to change their evidence to suit your case.
Your witnesses have to be honest. If that means they'll say things that aren't helpful to your case, you don't have to call them.
How do you question witnesses?
There are very specific rules about questioning witnesses.
You can't ask leading questions when you're questioning your own witnesses (called an examination-in-chief). A leading question is one that has the answer in the question. For example, "You didn't pay the child support, did you?"
Instead, ask questions that start with who, what, where, when, why, how, or please describe.
But you can ask leading questions when you're cross-examining the other person's witnesses. (See How do you cross-examine witnesses?, below, to find out more about this.)
Here are some other things to remember about asking questions:
- The questions you ask a witness aren't evidence. Their answers to the questions are evidence.
- Always let a witness finish answering your question before you ask them another one.
- Never argue with a witness. This:
- won't help your case, and
- won't impress the judge.
See Sample questions to ask your own witnesses at a Supreme Court trial for some ideas about how to question your witness.
Or watch this video for some ideas about how to speak in court when you question your witnesses.
How do you cross-examine witnesses?
You cross-examine a witness for the other person (which includes the other person themselves) to:
- test how true and reliable their answers are, and
- get evidence that helps your case.
Here are some ways you can do that:
- Ask questions to find out how the witness knows the things they're giving evidence about.
- Ask the witness if they're sure they can repeat exactly what they saw and heard.
- Ask questions that will show if the witness has any reason to be biased (that is, they're on one person's side) or will be affected by what happens in court.
- If a witness for the other person has made a sworn statement before the trial (an affidavit) and says something different at trial, ask them about the differences between their two statements.
- If a witness for the other person has said something positive about you or that's helpful to your case in their earlier affidavit:
- Ask them if they remember making the affidavit and swearing that it was true.
- Read the section aloud and ask the witness if it's true.
- If the witness says it's true, you've made your point.
- If the witness says it isn't true, the judge might question the truthfulness or reliability of the witness.
Make the most of your chance to cross-examine the other person's witnesses. If you don't cross-examine a witness about something, the judge might accept their evidence as true because it wasn't challenged (that is, you didn't ask questions about it).
If you're going to bring up evidence that contradicts what a witness says, you need to warn them in advance and give them the chance to explain.
What are objections?
When someone is questioning witnesses, you have the right to object to:
- the questions that they’re asking, and
- the introduction of documents that a witness has identified.
If you want to object to a question or to the introduction of a document, stand up. Don't say anything just yet. You might have seen people on TV jumping up and yelling "Objection!" That's not how it works in BC Supreme Court.
The judge will:
- ask why you're objecting,
- listen to what both you and the other person think about the objection, and
- decide whether your objection is valid.
Think about the rules about what evidence is admissible when you're making an objection. Be prepared to give a good reason for why you're objecting.
How to give your own testimony
If you're the claimant or respondent in a family law trial, you'll almost always give your own testimony (tell your side of things). This is your chance to tell your story.
You can only say what you actually saw, heard, or did, just like any other witness.
Make a detailed list of what you want to cover ahead of time. Ask the judge if you can look at your notes in the witness box.
When you're writing your notes, remember that both the judge and the other person in your case have the right to look at anything you refer to while you're testifying.
Give your testimony on each issue in the order that things happened. You'll probably be nervous, but do your best to speak slowly and clearly.
Don't worry if the judge interrupts you to ask questions during your testimony. They just want to make sure they hear and understand everything you're saying.
The rules for witnesses (for example, about hearsay) apply when you're giving your own testimony.
Tips for witnesses
Here are some tips to help you if you're a witness in court.
- stay calm,
- speak clearly and slowly, and
- stay focused on the question.
And here are a few tips about how to express your answers:
- Avoid opinions and conclusions, even if they're based on the facts. For example:
- Instead of: He was drinking before he arrived at the house.
- Say: When he arrived, he smelled strongly of alcohol and was slurring his words.
- Avoid descriptions of how you felt or reacted. For example:
- Instead of: I was shocked to discover her new boyfriend had stayed overnight.
- Say: Her new boyfriend has stayed at the house overnight.
- Avoid arguing. For example:
- Instead of: It's unfair that he gets to see the kids even though he's behind in his child support payments.
- Say: He's three months behind in his child support payments. He sees the children three times during the week and every other weekend.
- Avoid legal arguments. For example:
- Instead of: Under the child support guidelines, she should be paying me $500 a month.
- Say: Her guideline income is $54,000.