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Assessing Credibility In The Ghomeshi Trial

02/11/2016 05:01 EST | Updated 02/11/2017 05:12 EST
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Closing arguments have been made in the Jian Ghomeshi trial. The case, everyone agrees, turns on the credibility of the three complainants. How will the trial judge decide whether he accepts their testimony?

In assessing the credibility of witnesses, the trial judge is entitled to take into account a number of factors. Most straightforwardly, he may consider the complainant's demeanour on the witness stand -- i.e., the extent to which she strikes the judge as candid, forthright, and truthful in answering questions put to her by the Crown and the defence. In recent years, much doubt has been cast on the ability of judges (or anyone else) to reliably gauge the truthfulness of a witness merely by observing so-called "micro-expressions." Nonetheless, it is worth keeping in mind the role of demeanour in assessing credibility, given that most of us are relying on second- or third-hand written/tweeted accounts of the testimony, and have lacked the trial judge's unique vantage-point.

More importantly, the trial judge is entitled to consider any motives to lie or distort the truth that the complainant may have. In this case, of course, it has been strongly suggested that some or all of the complaints have been motivated by a desire for fame or notoriety, money (perhaps through access to criminal compensation funds), or revenge. In cross-examination, Marie Henein consistently emphasized that the complainants made their allegations only after claims about Mr Ghomeshi's propensity for sexual violence had already become public, hinting that they were simply exploiting an 'easy target.' The evidence provided by Sarah Dunsworth, that Lucy DeCoutere had described her encounter with Ghomeshi years before the story broke, was adduced by the Crown precisely to defuse this line of defence.

The trial judge may consider the existence of any prior inconsistent statements by the complainant, or any internal inconsistencies in her evidence, in determining how worthy of belief her testimony is. Marie Henein has, of course, done a masterful job of showing that the three complainants have revised their accounts over time. This has gone a long way to presenting the complainants as, to put it mildly, not entirely candid with the court. The Crown can plausibly argue that nothing unearthed by Henein is categorically inconsistent with the complainants' testimony that Mr Ghomeshi sexually assaulted them. But the cross-examination of the various complainants has been devastating.

Insofar as a witness' testimony is contrary to "common sense and experience," the trial judge may take that as a reason for discounting it. That is fairly uncontroversial as a general proposition. In the context of sexual assault, though, this presents some problems, since common sense may be quite unreliable. It would be highly dangerous to assume that someone who has been sexually assaulted necessarily 'would' or 'ought to' behave in some specific way. We cannot, for example, assume that sexual assault victims would make allegations at the earliest opportunity, or that they would never voluntarily choose to see their abusers again. Much of the controversy surrounding the Ghomeshi trial pertains to Henein's focus on the complainants' behaviour after the incidents in issue had ostensibly taken place. There are (understandable) concerns that, buried inside defence arguments that the complainants have been inconsistent in their accounts of what happened, there are also quiet insinuations that their behaviour simply does not square with common-sense ideas of how victims of abuse 'should' act.

It is also worth noting that the trial judge may consider the fact that the complainants' recollection of events has been degraded or distorted over time. This is not, strictly speaking, a matter going to credibility -- to whether or not they have lied. Rather, it goes to the good faith ability of the complainants simply to remember events that happened many years ago. The frailties of memory were raised a number of times by the complainants themselves as an answer to suggestions by Marie Henein that they had concocted their allegations against Mr Ghomeshi. But that is a double-edged sword: the trial judge may have as difficult a time placing faith in witnesses who cannot accurately remember what happened, as in witnesses who are consciously distorting the truth.

It may seem that, in assessing the credibility of each of the complainants, the judge can take into account the fact that others have made broadly similar allegations against him. But no. The Crown has adduced no "similar fact evidence" to show that Mr Ghomeshi has a propensity to act in the ways described by the complainants. Indeed, the Crown has not sought even to use the three complainants as similar fact evidence for each other -- in large part, no doubt, because Lucy DeCoutere and the third complainant have spoken at length with each other about the case, raising the strong possibility of collusion. It may also have to do with suggestions by the Supreme Court of Canada, inR v. Handy, to the effect that similar fact evidence cannot be used solely to show that complainants are more credible. In effect, this means that the trial judge must assess the testimony of each complainant as though she is the only person to have made any allegations of sexual violence against Mr Ghomeshi. Needless to say, this weakens the Crown's case.

Finally, keep in mind that the trial judge may believe the complainants on a balance of probabilities -- that is, he may conclude that it is more likely than not that Mr Ghomeshi committed the sexual assaults -- and yet not be convinced beyond a reasonable doubt.

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