Before the commencement of a trial the accused and his lawyer have a legal right to know all the evidence that the prosecutor has against him. The prosecution is obligated to provide all relevant information including evidence in their possession because of the investigation that is helpful to the accused in his defence. This information is disclosed to counsel for the accused. Crown disclosure will include the names of all witnesses that will testify or could testify. Crown disclosure will contain the statements of all witnesses interviewed by the police, the Crown, or both.
It is generally considered good practice that trial counsel does not personally interview a potential witness or take statements from a potential trial witness. The reason for this is probably obvious. In the event that the witness does not testify at trial in conformity to information that witness provided in a prior statement, counsel may be forced to challenge the witness’s trial evidence. If counsel is the only witness to the prior inconsistent statement, counsel has created a dilemma for herself. Does she drop the role of counsel for the accused to become a witness for the accused? Does she abandon the earlier inconsistent but preferable rendition of events to remain counsel for the accused? Counsel is not entitled to be both counsel and witness.
To avoid this dilemma, counsel should always have an independent person take or receive a statement from a potential witness. At minimum, even if counsel is present during the taking of a statement from a potential witness, counsel should have an independent witness present if that independent witness is needed later to testify as to what the potential witness has said on an earlier occasion.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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