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This pamphlet is published by the Community
Legal Information Association of P.E.I. Inc. in co-operation with Victim
Services and the Office of the Attorney General
A Guide for Witnesses As a witness, you have an important duty. The testimony of witnesses is the major source of information for the courts. It forms the basis for legal decisions affecting the lives of our Island citizens. You may be called as a witness for either a criminal or civil trial. This pamphlet explains your rights and responsibilities as a witness in the criminal courts of Prince Edward Island. If you are called as a witness in a civil case, you may direct your questions to the lawyer who contacted you. A trial is held when a person has been
charged with a criminal offence. You may be called as a witness by
either the Crown Attorney (also called the prosecutor) who is the lawyer
acting for the Crown on behalf of society, or the defence lawyer who is
acting for the accused. Or you may be called as a witness by both
lawyers. While you are in the courtroom, you follow the instructions
of the judge who presides over the court.
What is a Subpoena? A subpoena is a court order which requires you to appear in court at a specified time and place to give evidence for either the Crown or the defence, or both. You may wish to show the subpoena to your employer to arrange for time off to attend court. If, because of a very serious circumstance, you are unable to attend, you should contact the lawyer who called you (either the Crown attorney or defence lawyer) at once. If you fail to obey a subpoena, a warrant may be issued for your arrest, and/or you may be charged with contempt of court which is a criminal offence. If found guilty of contempt of court, you may be fined or given a jail term. You may wish to contact the Crown attorney or defence lawyer when you receive the subpoena to make an appointment to prepare for court. It is also a good idea to contact the office of the Crown or defence lawyer a day or two before the stated date to be sure the trial is going ahead as scheduled. If you are subpoenaed by the Crown attorney and later contacted by the defence lawyer or vice versa, you are free to talk to the other lawyer, although you are under no legal obligation to do so. If you have any questions speak to the
lawyer who had you subpoenaed. Also, as a witness you have a right
to seek advice from an independent lawyer, although a witness is not usually
represented by a lawyer in court.
How Do I Prepare for Giving Evidence in Court? Before going into court to give your testimony,
take some quiet time to think about what happened. Try to remember
details such as conversations, people present, dates, times, colours, distances,
speed and all other relevant facts. If you made notes
at the time of the event you may be allowed to take these into court with
you. Ask the lawyer handling the case if this is possible.
If you signed a statement for the police at the time of their investigation,
you may arrange with the Crown attorney to review it.
What Do I Do When I Arrive in Court? If you wish, a friend or family member may go with you to court. Check in advance to make certain you know the exact location of the courthouse and allow enough time to find a parking space. When you get to the courthouse find out in which courtroom the case is being heard. It is important that you arrive at the courtroom at least 15 minutes before the time specified on the subpoena. The lawyer who requested your presence may have some questions to ask you before court begins. If you are a witness for the Crown, try to let the Crown attorney know you have arrived. If you are a witness for the defence, make your presence known to the defence lawyer. Enter the courtroom quietly just before
court is scheduled to begin and sit in the public area at the back until
your name is called. It is quite common that all witnesses are asked
to leave the courtroom until it is time to give their evidence.
What Will Happen to Me in Court? When it is your turn to answer questions your name will be called and you will be directed to the witness stand. When you take the witness stand, you will be asked to state your name and swear an oath to tell the truth. Most witnesses swear to the truth by placing their right hand on a Bible. However, if you do not wish to take the usual Christian oath, the law allows you to solemnly affirm the truth of your evidence. If you wish to affirm, inform the Crown attorney or defence lawyer a few days before your appearance. This is the most common oath: "Do you swear that the evidence you are about to give the court in this case shall be the truth, the whole truth and nothing but the truth, so help you God?" If you wish to affirm you will be asked something like "Do you solemnly affirm that the evidence you are about to give the court in this case shall be the truth, the whole truth and nothing but the truth?" Common responses are "I do" or "I swear", or "yes". If you are asked to give your address, and do not wish to do so in open court, tell the judge. The case for the Crown attorney is presented first. If you are a witness called by the Crown, you will be questioned first by the Crown attorney. This is known as direct examination. When the Crown attorney has finished questioning you, the defence lawyer will ask you questions. This is known as cross-examination. The case for the defence then begins. If you are a witness called by the defence, you will be questioned first by the defence lawyer and then cross-examined by the Crown attorney. While you are on the witness stand, you
may also be asked questions at any time by the judge. Provincial
Court judges are addressed as "Your Honour", "Sir" or "Madam". If
the trial is before the Supreme Court, address the justice as "My Lord",
"My Lady", "Sir" or "Madam".
How Should I Act in Court? Stand up when the judge enters or leaves the courtroom. Do not discuss your testimony with other witnesses. If a jury is present, do not talk to jurors. To do so may cause a mistrial. You have probably already discussed the evidence with the Crown attorney or defence lawyer. In court your job is to answer their questions to the best of your recollection. Normally, special clothes are not necessary for a court appearance; however, you should wear clean, neat clothing. Speak clearly and loudly enough so that
everyone in the courtroom can hear you easily. There may be a microphone
near you which tape records the testimony for court records. It does
not make your voice sound louder.
What Should I Keep in Mind When Answering Questions (Giving Evidence) in Court? Take your time when you are giving evidence; there is no need to feel pressured. It is a normal or natural human reaction to feel nervous as this is an unusual situation. If you don't understand a question don't be afraid to say so. Ask for the question to be repeated or asked in another way. Be as clear as possible when testifying. Avoid phrases such as "I think" or "I guess" as they can be misleading. If you are certain something occurred, make that clear. On the other hand, if you do not know the answer to a question, say so. The evidence of a witness who seems frank and sincere can carry considerably more weight than the evidence of a witness who appears biased, hesitant, or evasive. Do not ramble. Answer the questions being asked and then stop. The judge and jury are only interested in the facts. Therefore, don't give any opinions or draw any conclusions, unless specifically asked. Always speak your answers as they are recorded by the court stenographer. Do not just shake or nod your head to indicate "yes" or "no". If you become upset during your testimony, you may ask the judge for time to regain your composure. Always be courteous, even though the lawyer questioning you may appear to be aggressive, particularly during cross-examination. Remember the judge is there to prevent anyone from badgering you. If you make an honest mistake in your evidence,
inform the Crown attorney or defence counsel as quickly as possible so
that the error may be corrected.
Do I Have to Answer Every Question I am Asked? Normally, yes. However, if a certain question is embarrassing for you to answer and seems irrelevant to the case, you may ask the judge if you have to answer. If the judge rules that the question is relevant, you will have to answer it truthfully. You may object to answering a question on the grounds that the answer might mean that you could be convicted of a crime. The Canadian Charter of Rights and Freedoms states that a witness has the right not to have any self-incriminating evidence used against him or her in any other proceeding. This applies to all cases except those involving prosecution for perjury or giving contradictory evidence. If this is your situation, you may wish
to consult your own lawyer for independent legal advice before you go to
court.
How Long Do I Have to Spend in Court? After you testify, you must stay in the courthouse until you are excused by the judge or until the case is finished for the day. If you need to leave when your testimony is finished, ask the judge if you may leave the courthouse. Since court proceedings can be very complex, there is really no way of knowing how long each case will take. You may find that you will have to wait. A book or some quiet activity may help pass the time when court is not in session or while you are waiting outside the courtroom. Sometimes the judge will ask if there is any need to detain a witness after the witness has given evidence. If the answer from both the Crown attorney and the defence lawyer is "no," you will be able to leave. Be prepared to have lunch and return to
the courthouse in case the trial resumes after the lunch hour.
What if Someone Tries to Influence Me to Drop Charges or Change My Evidence? Tell the police immediately. It is
illegal for anyone to harass or attempt to influence you. If this
happens a charge of obstructing justice may be laid against the person
who is contacting you.
What Happens if There is a Delay or Adjournment? If there is a delay or adjournment the
judge will usually set a new date and time. You may be issued another
subpoena, but this is not required and the subpoena originally served will
continue to be in force for the new day.
Are There Any Childcare Facilities in the Courthouse? No. Make arrangements for someone to look
after your children while you are in court.
Will I Be Paid For Being a Witness? Witnesses subpoenaed by the Crown may receive a fixed daily rate plus mileage if they are coming from out of town. In addition to the daily rate, out-of-province witnesses may be compensated for travel, accommodation, and meals. Higher fees are paid to professional witnesses. The police fill out witness fee forms for Crown witnesses stating the daily rate and all eligible expenses. These are processed through the Office of the Attorney General or police departments and payment is made immediately or by cheque through the mail. It is important that the police have your correct mailing address. Check with the police officer at court regarding witness fee procedures. Occasionally witnesses are prepaid when they are served with a subpoena. Unlike subpoenaed Crown witnesses, defence
witnesses do not have their fees arranged through the police. In
practice, a defence witness is often informally asked to appear as a witness
and may not receive a subpoena. Such a person does not usually ask
for a fee. However, if you are a defence witness who feels that you
should be paid for your time, discuss it with the defence lawyer.
What Will Happen to the Accused? If found not guilty, the accused will be
allowed to go free. If found guilty, the accused may be fined, receive
a prison or jail sentence, be placed on probation and/or ordered to make
restitution (i.e. pay for at least part of the victim's losses).
TERMS AND THEIR MEANINGS Contempt of Court - Any form of misconduct which shows disrespect for the court, for example, disobeying a court order or insulting the judge or other court official. Cross-examination - The questioning of a witness by the opposing lawyer. The purpose is to clarify or discredit testimony already given under direct examination. Crown Attorney - The lawyer who is acting for the Crown and is presenting evidence to support the charge against the accused. Defence Lawyer - The lawyer who is acting on behalf of the person who is charged with the offence. Defendant (also called the Accused) - The person in court who is charged with an offence. Direct Examination - The initial questioning of a witness by the lawyer who called the witness. The purpose is to present evidence supporting the factual argument the lawyer is making. Evidence - Testimony or objects presented in court to try to prove or discredit something relevant to the charge. Jury - A group of people from the community, whose purpose at the trial is to decide whether the accused is guilty of the offence. Offences (Summary, Indictable and Hybrid) - Offences under the Criminal Code of Canada are divided into three general types depending upon the seriousness of the offence and the procedure followed: 1) summary offences will be tried in a Provincial Court (e.g. causing a disturbance). 2) indictable offences can be tried in either Provincial Court or Supreme Court, with or without a jury - in most cases the choice is up to the accused (e.g. robbery). 3) dual or hybrid offences can be tried as either summary or indictable offences at the choice of the Crown attorney (e.g. dangerous driving). Preliminary Inquiry - A hearing to determine whether a charge for an indictable offence will proceed to trial. Provincial Court - The court in which all charges under the Criminal Code are first brought before a judge. It is also the court which hears summary conviction cases, preliminary inquiries, and indictable offences when the accused elects trial by Provincial Court Judge. Reasonable Doubt - A degree of doubt that would make a reasonable person hesitate before believing someone is guilty of an offence. Before an accused person can be convicted, the Crown attorney must prove that person guilty "beyond a reasonable doubt". The accused does not have to prove that he or she is innocent. Stay of Proceedings - A right of the Attorney General of the Province, represented by the Crown attorney, to suspend the prosecution temporarily in appropriate circumstances. The Attorney General may later decide to reinstate the proceedings within six months on a summary conviction charge, or within one year on an indictable proceeding. The Crown attorney also has the choice of initiating a new charge. Subpoena - A legal document that tells a person he or she must appear in court as a witness on a specified date, time and place. Supreme Court - The court in which indictable matters are tried when the accused elects trial by Supreme Court judge or Supreme Court judge and jury, and the court where the most serious indictable offences are automatically heard. The Appeals Division of the Supreme Court hears appeals from Provincial Court, and from the Trial Division of Supreme Court. Testimony - spoken evidence given under oath by a witness during a trial. Trial - A court hearing during which a judge, or judge and jury, hears evidence and decides on the basis of that evidence whether an accused person is guilty or not guilty. Voir Dire - A "trial within a trial". A hearing during the trial, out of the presence of the jury, where the judge decides whether specific evidence will be admitted. Witness - A person who gives evidence
in court.
If you have questions don't hesitate to ask officials of the court for information. They are there to help you. If you are a victim of crime and will be appearing as a witness for the Crown you may wish to call Victim Services at 368-4582 or 888-8217 for information and assistance. Additional copies of this pamphlet may be obtained by contacting the courthouse nearest you: Court House
Sir Louis Henry Davies
Court House
Provincial Court
Law Court Building
or contact: Community Legal Information Association
Phone: 892-0853 or toll free 1-800-240-9798.
This pamphlet was prepared and published by the Community Legal Information Association of Prince Edward Island Inc.(CLIA) for informational and educational purposes only. It contains general information about one area of the law, being a witness in criminal court. It does not contain a complete statement of the law in this area. If you have a legal problem, you need legal advice that this pamphlet cannot provide. To get legal advice contact a lawyer. If you do not know a lawyer you may contact one through the Lawyer Referral Service, Phone 1-800-240-9798 or 892-0853. You will be given the names of two lawyers, a half hour appointment with one of them through this service will cost you $10 plus tax. As changes in the law and court procedure may occur, the information in this pamphlet may become out of date. Community Legal Information Association of Prince Edward Island Inc. is a charitable organization funded by the Department of Justice Canada, Office of the Attorney General P.E.I., the Law Foundation of Prince Edward Island and other funding sources. CLIA provides Islanders with useful, understandable information about our laws and the justice system. You may support the Association through volunteering, becoming a member or by making a donation. charitable registration number: 118870757RR001 Edited by the Publications Committee, CLIA ISBN 0-921896-14-X
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