What goes into preparing a complainant for cross-examination

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.