Damage done on Tuesday to the credibility and reliability of its first witness could leave the Crown on shakier ground in what’s known as a “similar fact” application, observers of the Jian Ghomeshi trial say.
After the Crown requested a delay after problems in scheduling witnesses, the trial is to resume Thursday. But the next witness remains a mystery.
It could be a friend of the complainant, whose testimony about learning of the alleged sexual assault at the time might help to rebuild the woman’s credibility, in turn helping the Crown to argue that similarities in the allegations of the three women should be considered by the judge.
Reliable corroborating evidence could help the Crown rebut an assertion by the defence that the allegations were fabricated after media reports came out about Ghomeshi’s actions, or that there was collusion among the complainants, said defence lawyer Daniel Brown, who is not involved in the case.
But if the Crown is unable to include her in a similar-fact application, it could significantly weaken the prosecution’s position.
“If the defence is destroying the credibility of one witness, they will have a harder time putting a similar fact application together,” said defence lawyer Cydney Israel, who is also not involved in the case and was speaking generally.
“It certainly is the Crown’s duty during a trial to assess and reassess the reasonable prospect of conviction,” she said. It happens rarely, but Crowns do sometimes end up saying before closing submissions that it just doesn’t have enough to prove guilt beyond a reasonable doubt.
“We often say the Crown takes their witnesses as they come. Sometimes the Crown has wonderfully consistent witnesses, credible witnesses who are able to communicate their evidence in court. Other times they have witnesses who leave out important details, or forget things or change important details out of their stories,” Brown said. “And there is not much a Crown attorney can do in any of those scenarios except to put them on the stand and ask them to tell the truth.”
One suggestion from University of Windsor law professor David Tanovich is to call an expert witness to explain the effect that trauma can have on memory.
“I think a lot of the inconsistencies can be explained by the neurobiology of trauma, which reveals that memories of traumatic events are often fragmented because of how our brains encode and consolidate such information,” he said.
The court needs to be properly equipped with that knowledge to adjudicate fairly, he said.
The Crown and defence lawyers also have different roles in preparing their witnesses to be cross-examined, Brown says. The Crown is not out to win the case; the prosecution represents the state. Crown attorneys also don’t have the benefit of disclosure and would not know, for example, that the defence had the emails sent from the complainant to Ghomeshi.
The defence has the benefit of disclosure and the evidence to be used in the trial itself, which can be used to prepare the client.
Legal counsel for sexual assault complainants has often been suggested as helpful in preparing them for cross-examination — though they won’t know what information about the complainant the defence has. The province has proposed a pilot project to offer free legal advice to sexual assault complainants.
“My personal view is that every complainant in any case should have access to legal counsel if they choose,” the complainant’s lawyer, Jacob Jesin, said Tuesday. “The Crown and the police, while they are doing their jobs, cannot offer anyone confidentiality. … Anything that anyone says to a Crown or a police officer must be delivered to the defence.”