Discovery Evidence Can’t Be Read In If Rule in Browne v. Dunn Not Complied With

Mr. Justice Bruce Glass of the Superior Court has made a ruling that will interest trial lawyers (and few others). Morrison v. Greig was a personal injury action. At trial, defence counsel elected not to cross-examine the plaintiff while the latter was in the witness box (or “on the stand”, as they say in the United States). At the conclusion of the evidence, defence counsel sought to read in evidence given by the plaintiff on his examination for discovery.

The plaintiff’s solicitor objected that this procedure would violate the rule in Browne v. Dunn and should not be permitted. The rule in Browne v. Dunn is perhaps not widely-known; many trial lawyers discover it for the first time the hard way, by being faced with an objection at trial and having no idea what the other lawyer is talking about.

The case (Browne v. Dunn) is a rather venerable one, decided by the House of Lords in 1893. In his speech, Lord Herschell said, “My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box [there’s that phrase again], to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

So, if you intend to try to impeach the credibility of a witness with other evidence, the rule in Browne v. Dunn requires that you confront the witness with the impeaching evidence in the course of cross-examination.

In Morrison, Justice Glass concluded that the rule had not been followed and he refused to allow the discovery evidence to be read in.

Counsel for the defence argued that he was seeking to read in the discovery answers only as admissions against interest. This would undoubtedly have been a legitimate objective. However, counsel for the plaintiff contended that the effect of reading in the discovery testimony would be to challenge the plaintiff’s credibility without affording him an opportunity to respond to or explain his answers. The plaintiff’s solicitor pointed out that section 20 of the Evidence Act requires that if it is sought to contradict a witness by a prior statement given by him or her, he or she must first have his or her attention called to the contradictory parts.

Justice Glass agreed with the plaintiff’s position and refused to permit the evidence to be introduced.

The problem that confronts trial counsel is to identify clearly where the line is drawn between admissions against interest given on a party’s discovery (which can be read into evidence) and evidence that undermines the credibility of the party who was examined. When a witness has made a damaging admission on discovery, having to put that admission to him or her in cross-examination or risk not being able to use it also means giving the witness a chance to wriggle out from under the admission, by explaining it, denying it, saying he or she didn’t understand the question, etc. But then, that’s the whole rationale of Browne v. Dunn.

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