Certain court practices, such as "oath helping" and improper questioning of complainants, can lead to wrongful convictions in sexual assault cases by undermining the presumption of innocence and influencing witness credibility
Questions to inspire discussion
Testifying in Sexual Assault Cases
🗣️ Q: Why is testifying crucial for the accused in sexual assault cases?
A: Testifying is vital for the accused to provide their version of events to the judge and jury, as not testifying can lead to jury speculation about what the accused is hiding, potentially harming credibility.
👨⚖️ Q: Should the accused testify even if their testimony isn't perfect?
A: Yes, the accused should testify even if not perfect, as there's little downside and it's crucial to get their version before the trier of fact, whether jury or judge.
🔍 Q: How can failure to testify impact an appeal?
A: The accused's failure to testify can be held against them on appeal, as the court of appeal will always consider it negatively, potentially leading to a new trial being ordered.
Evidence and Character in Sexual Assault Cases
🧑⚖️ Q: How can prior bad character be used in sexual assault cases?
A: The accused's prior bad character and discreditable conduct can be used by prosecution to suggest higher likelihood of committing the assault, but defense must carefully instruct the judge to limit this evidence's use.
🛡️ Q: Can the defense use the complainant's prior bad character?
A: Yes, the defense can use complainant's prior bad character to suggest they're more likely to fabricate allegations, but must carefully instruct the judge to prevent propensity reasoning.
Oath Helping and Its Implications
🤔 Q: What is oath helping in sexual assault cases?
A: Oath helping is a tactic where the crown elicits evidence from the complainant to bolster credibility, such as testifying they're telling the truth and want to hold the accused accountable.
⚖️ Q: Why is oath helping considered impermissible?
A: Oath helping is highly impermissible as it can lead to wrongful convictions by implying the complainant is more truthful for choosing to testify despite trial hardships, inconsistent with presumption of innocence.
🚫 Q: What did the court of appeal rule about oath helping questions?
A: The court ruled oath helping questions inadmissible as they sought to bolster complainant's credibility by implying truthfulness due to choosing to testify despite trial rigors.
Consequences of Oath Helping
⚠️ Q: What is the impermissible inference behind oath helping questions?
A: The impermissible inference is that the complainant is more likely truthful for testifying despite trauma and hardships, which is inconsistent with presumption of innocence.
🧠 Q: How can oath helping questions raise collateral issues?
A: Oath helping can raise collateral issues in jury's mind (e.g., who made the offer, when, why), leading to wrongful convictions as jury focuses on the offer rather than evidence.
👁️ Q: How does oath helping undermine the presumption of innocence?
A: Oath helping undermines the presumption of innocence by shifting jury focus from evidence to inferences about complainant's credibility based on their decision to testify.
🗳️ Q: What was the crown's argument on appeal regarding oath helping questions?
A: The crown argued the questions weren't oath helping as the complainant chose to testify of free will, knowing trial issues and hardships, but this ignores the impermissible inference of increased truthfulness.
Key Insights
Testimony and Credibility
🗣️ In sexual assault cases, testifying is crucial for the accused to provide their version of events, as not testifying can lead to jury speculation about what the accused is hiding.
👥 The accused's testimony is vital to discredit the complainant's evidence and challenge their credibility, as the jury may be skeptical of the accused's version if they don't testify.
🧠 Accused's testimony can explain their behavior and motivation for the alleged assault, which is crucial in discrediting the complainant's evidence and challenging credibility.
Impermissible Oath Helping
⚖️ The crown's questioning of the complainant about choosing to testify despite hardships is impermissible oath helping, as it bolsters the complainant's credibility.
🚫 The court of appeal ruled that the crown's questions at the end of the complainant's examination were wrong, as they sought to bolster credibility improperly.
❌ The crown's argument on appeal that there was no prejudice to the appellant is incorrect, as the questions were impermissible oath helping.
Legal Implications
⚠️ Subtle errors in sexual assault trials, such as inappropriate jury directions and inadmissible crown tactics, can lead to unjust convictions.
🔍 The podcast hosts highlight systemic issues poisoning highly contentious family trials and explain why calling the accused to testify might be the only way to stand out.
🏛️ The discussion reveals critical flaws in the conduct of sexual assault trials, emphasizing the need for careful scrutiny of legal procedures.
Podcast Context
🎙️ This episode of "Not on Record" features hosts Joseph and Michael analyzing a recent Ontario Court of Appeal decision on sexual assault trials.
💼 The hosts use personal anecdotes, sharp legal insight, and characteristic irreverence to discuss the legal issues at hand.
#Justice
XMentions: @HabitatsDigital @NotonRecord @NeubergerLaw
Clips
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00:00 🤯 A podcast discusses a disturbing case of parental alienation and a court of appeal decision in a sex assault case that has sparked outrage and frustration.
- The conversation revolves around a disturbing case involving parental alienation, lying, and collusion that will be discussed in a podcast case study.
- The speaker discusses a recent court of appeal decision by His Majesty the King regarding a standard sexual assault case, which has sparked outrage.
- A man allegedly sexually assaulted his ex-partner as an act of revenge for her cheating, claiming she needed to be punished for her behavior.
- A lawyer jokes about a client's photo and patting his head, before being asked to focus on explaining a court case related to police interactions and appeals.
- A lawyer expresses frustration with a serious sex assault case, stating it "pisses him off" due to its straightforward nature and the challenge of presenting it in a neutral tone for an appeal.
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04:47 💡 Not testifying in a trial, especially in sexual assault or high-conflict divorce cases, can harm the accused's appeal and chances of winning.
- They can discuss certain topics on the podcast, specifically on the Podcast Club.
- Accused not testifying at trial can harm their appeal, and generally, there's no downside to testifying, so it's often beneficial for the accused to testify.
- If accused, testify and present your evidence to a judge or jury to avoid raising suspicions and to present your version of events.
- In sexual assault cases, not having the accused testify is often a mistake, as it prevents their side of the story from being heard, making it difficult to win.
- In high-conflict divorce cases, bad character evidence is often presented, and judges must give limiting instructions to juries to prevent misinterpretation.
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10:22 💡 Discussion on "oath helping" highlights improper use of bad character evidence in domestic cases, specifically propensity reasoning, leading to potential injustices.
- Someone requests WD-40 to fix a squeaky chair.
- Evidence of a person's bad behavior during a relationship cannot be used to imply they are more likely to have committed a sexual assault, known as propensity reasoning.
- When using bad character evidence in domestic cases, it's crucial to instruct the judge or jury on its proper use and limitations to avoid errors that can lead to appeals and new trials.
- The conversation appears to be setting up a discussion about "oath helping" and its relation to injustices, but first the speakers are informally settling in and defining terms.
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14:20 💼 A judge intervenes in a court case to clarify a witness's role, while discussing tactics used by prosecution and defense lawyers to influence testimony and credibility.
- Oath helping occurs when prosecution elicits evidence from a witness to bolster their credibility by suggesting they are testifying truthfully despite having a choice not to be there.
- Defense lawyers often use a tactic of asking emotional questions, like "how do you feel about being here today?", which can be frustrating and seem insincere.
- A crown representative expresses anxiety about being in a hearing, then states that DQS should be held accountable for their actions.
- A judge intervened in a court case, instructing the jury that a complainant's role is to testify about their experiences, not to express opinions on the case's disposition.
- The speaker is asked to convey a message slowly, emphatically, and with emotion, but seems too tired.
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20:04 🤝 A podcast discusses wrongful convictions, highlighting a court case where questioning a complainant about their choice to testify was deemed irrelevant and improper.
- The complainant is asked if they were given the opportunity not to testify in the case.
- A complainant, referred to as Barbie, confirms she was given the opportunity not to testify and chose to do so of her own free will.
- The podcast aims to educate the public about the causes of wrongful convictions, particularly in high-conflict divorces and cases of wrongfully accused men and women.
- A complainant with a potentially concealed mental health condition, "Ashley", testifies of her own free will after being given the opportunity not to testify.
- The crown argued on appeal that the first passage was an acceptable open-ended question, but the judge deemed it inappropriate, while claiming the second passage caused no prejudice to the appellant.
- The court of appeal ruled that questioning the complainant about her choice to testify, despite being given the option not to, was irrelevant and improperly aimed at enhancing her credibility.
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26:53 💔 Oath helping, a trend where witnesses' credibility is bolstered by their pursuit of a complaint, drives injustices in sexual assault cases by undermining the presumption of innocence.
- Despite widespread awareness of its wrongness, people continue to engage in unacceptable behavior, which is deeply troubling.
- Prosecutions for sexual assault often rely on impermissible inferences, such as assuming a witness is telling the truth because they chose to testify despite the hardships of doing so.
- The reception of evidence solely to establish a witness's truthfulness, known as oath helping, is prohibited and not admissible in court.
- Allowing oath helping questions that imply a complainant's credibility is bolstered by pursuing a complaint undermines the presumption of innocence and creates collateral issues for jurors to consider.
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31:18 💡 Inappropriate questioning of complainants by prosecutors can lead to wrongful convictions and must be stopped.
- The speaker is pausing for a bit to wait before continuing.
- A prosecutor should never ask a complainant if they were given a choice not to testify, as it implies that their testimony is only valid because they chose to participate.
- Inappropriate questioning of a complainant by the crown, justified on appeal, leads to wrongful convictions and must be eradicated from trials.
- 34:53 👍 The podcast creators encourage viewers to engage with their content, provide feedback, and stay tuned for more episodes and upcoming merchandise, while aiming to raise awareness about a common issue leading to wrongful convictions.
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Duration: WatchUrl: https://www.youtube.com/watch?v=-fz8YHFmKeo Publication Date:2025-07-19T12:07:42Z
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