As defence lawyers have been grilling the complainant in the sexual assault trial for five former world junior hockey players, they’ve commented several times that she had clearly been well prepared for the proceedings in London, Ont.
It’s alleged E.M., the name used in court as her identity is protected by a standard publication ban, was sexually assaulted in June 2018 in a hotel in the southwestern Ontario city. Michael McLeod, Alex Formenton, Carter Gart, Dillon Dubé and Cal Foote — who later went on to careers in the NHL but currently aren’t in the league — have all pleaded not guilty.
On May 5, David Humphrey, McLeod’s lawyer, started cross-examining E.M.’s past accounts of that night. Two days later, Hart’s lawyer, Megan Savard, began her cross-examination, and Formenton’s lawyer, Daniel Brown, picked up questioning on Thursday afternoon.
CBC asked legal experts how lawyers prepare witnesses like E.M. for lengthy cross-examinations. They explained the process begins long before the trial.
Toronto-based lawyer Jacob Jesin has prepared witnesses for high-stakes cases for years.
“This is not something that’s done a week or two, or even a few days before,” Jesin said. “It’s sort of like exams in university.”
Jesin said witnesses need to start preparing weeks and sometimes months in advance, particularly if there are a lot of materials, like previous statements of claim or affidavits.
Dawne Way, a Toronto-based lawyer who often works with sexual assault complainants, said if there is a high volume of evidence, she structures a number of meetings to go over those materials with the witness.
“When I do a prep with a complainant, I generally do a mock examination in chief where I’m pretending to be the Crown attorney and asking them to tell what happened, and then also do a mock cross-examination in which I’m pretending to be defence counsel,” Way said.
Way and Jesin both generally advise witnesses to keep their answers brief, and really take their time and think about the questions they are asked, though Way acknowledged sometimes witnesses will try to inject their answers with some of their own narrative.
Jesin said he also likes to review more subtle behaviour as well with his clients.
“Things like demeanour, body language, your choice of wording can all make you appear more credible or less credible,” he said.
Emotions can run high in a criminal trial, so it’s important to talk to clients about maintaining composure, Jesin said.
“Ensuring that you, for example, don’t get angry, don’t get defensive — that’s not going to help your case no matter which side you’re on,” he said.
“You have to be careful that you may think that you’re as a witness scoring points with a snarky remark or pushing back against the lawyer. That can come across really poorly to a jury or a judge looking at it objectively from the side of the room.”
Complainant in hockey sexual assault trial grilled about ‘porn star persona’
Long cross-examinations with multiple lawyers can be draining, said Christopher Sherrin, a law professor at London’s Western University.
“Exhaustion can set in, confusion, can set in, because you may have been asked similar questions or even the same question before,” he said.
At the same time, Sherrin said, an overly intense cross-examination can backfire.
“I’ve seen it happen where a witness is cross-examined to such an extent that it can actually sort of rebound against the cross-examiner or the cross-examiners as a group in the sense that, or for the reason that people start to feel sorry for the witness.”
Still, being under lengthy cross-examination can be confusing and isolating for a witness.
They may be asked, as has happened to E.M., to leave the courtroom several times a day without explanation and they are forbidden from discussing their case with their lawyers.
“You cannot, during cross-examination, discuss the witness’s evidence with the witness. So the Crown could not talk to the complainant about how she responded to questions or further questions that might be coming up. All of that becomes off limits,” Sherrin said.
Way said it helps to explain to a witness why it is important not to discuss evidence while under cross-examination.
“No one wants her evidence to be tainted and we want the trial to proceed successfully. We don’t want some sort of mistrial application or something like that, or to have her credibility challenged because someone thinks that she may have discussed something with counsel or with someone else.”
It is also why Way encourages clients to make sure they have significant supports in place from their family and friend circles or a therapist while they go through the trial process.
On the flip side, there is always the risk of over-preparing a witness, Sherrin said.
“If you keep going through potential lines across examination and questioning again and again again, then when they’re actually asked the question in court, their answer comes across as robotic and rehearsed, and therefore not believable,” he said.
You can prepare a witness but that is no guarantee it will make a difference, Sherrin said.
“Just like if you play sports, you know, you can practise as much as you want. It’s different when you actually get out on the court, or on the ice or whatever it is and play the game,” he said.
