Hart, McLeod, Dube, Foote, Formenton charged with sexual assault

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Just to clarify, it is Brett Howden's testimony that's under scrutiny.

[taxbuster]

Prosecutors are going hard at the bro culture..and it appears, with good reason. 18 identified inconsistencies in Howden’s testimony.

The Defence absolutely barraged EM over inconsistencies…and it seems odd that the Crown has to make application to cross their own (apparently reluctant) witness.

Maybe Gio or MBates (or another trial lawyer) can clarify why this is necessary/seems unequal?

[FlamesAddiction]

Is this the same thing as when lawyers request that the judge allows them to treat a witness they call as a "hostile witness"? I heard that term before, but not sure if that is an American thing.

[Titan2]

Originally Posted by Burner

are you just trying to be offensive - what a disgusting comment, Not sure what Jesus had to do with this

Originally Posted by undercoverbrother

Jesus isn't real

And the Jesus part is what offended you? Really?

No. He is not serious.

[GFG#1]

Originally Posted by taxbuster

Prosecutors are going hard at the bro culture..and it appears, with good reason. 18 identified inconsistencies in Howden’s testimony.

The Defence absolutely barraged EM over inconsistencies…and it seems odd that the Crown has to make application to cross their own (apparently reluctant) witness.

Maybe Gio or MBates (or another trial lawyer) can clarify why this is necessary/seems unequal?

There was an article yesterday, I think it was TSN but not certain, that explained that the inconsistencies are with statements in the Hockey Canada investigation, and it did not involve lawyers, which is why those were deemed inadmissible in pretrial hearings. Sorry I can't find the link today.

I am having a hard time with the I don't recall responses, I get it was a long time ago, but When Hockey Canada reopened the investigation, the players were threatened with a lifetime ban. I suspect that would have made them remember and since that was something they had been working hard towards for their entire lives, the events of that evening could have cost them that goal.

I do think it's plausible that they don't remember every detail, but it's unlikely that they don't have a decent recollection of the events that transpired. It seems like the only parts they don't remember are the incriminating parts. They all seem to remember she was egging them on, and all even use the exact same words for what she was saying.

Edit found the link
https://www.tsn.ca/rick-westhead-202...rial-1.2309194

[GioforPM]

Originally Posted by taxbuster

Prosecutors are going hard at the bro culture..and it appears, with good reason. 18 identified inconsistencies in Howden’s testimony.

The Defence absolutely barraged EM over inconsistencies…and it seems odd that the Crown has to make application to cross their own (apparently reluctant) witness.

Maybe Gio or MBates (or another trial lawyer) can clarify why this is necessary/seems unequal?

Usually you can't cross-examine your own witness - mainly meaning you can't ask leading questions or try to impeach them. You need permission to do so, and yes, it's essentially the "hostile witness" concept.

IMO what happened here is that they knew they needed these guys to give evidence they needed to get out there, so they had to call them. But they also knew there'd be a bunch of very unhelpful evidence and would be reluctant to give the stuff which was harmful to their buddies. So they probably planned to do this all along.

[fotze2]

Originally Posted by Burner

are you just trying to be offensive - what a disgusting comment, Not sure what Jesus had to do with this

Yes, if you say really stupid things I will come back with equally dumb things. Things is I recognize what I said is offensive and did it purposely, but if you are stupid and don't realize it, that's the problem. Pretty sure baby jesus wasn't rapey.

[taxbuster]

Originally Posted by GioforPM

Usually you can't cross-examine your own witness - mainly meaning you can't ask leading questions or try to impeach them. You need permission to do so, and yes, it's essentially the "hostile witness" concept.

IMO what happened here is that they knew they needed these guys to give evidence they needed to get out there, so they had to call them. But they also knew there'd be a bunch of very unhelpful evidence and would be reluctant to give the stuff which was harmful to their buddies. So they probably planned to do this all along.

I used to be an avid player of the game of "Go" which is a bit of an abstraction of territorial control on a board. It is a slow and measured game, often taking days in serious tourneys (not for me though!) and is a serious, deliberate attempt for each side to outfox, outmanoeuver and eventually surround and capture territory controlled by the other.



What is happening here reminds me ever so strongly of this. (For the excessively (obsessively?) literate, read Herman Hesse's "The Glass Bead Game".)


Maybe that is the way of many complex criminal trials.


Thanks Gio...CBC now has an explainer as well on their site which matches your commments well.

[taxbuster]

Originally Posted by fotze2

Yes, if you say really stupid things I will come back with equally dumb things. Things is I recognize what I said is offensive and did it purposely, but if you are stupid and don't realize it, that's the problem. Pretty sure baby jesus wasn't rapey.

Good effing grief.

[Icantwhisper]

Originally Posted by fotze2

Yes, if you say really stupid things I will come back with equally dumb things. Things is I recognize what I said is offensive and did it purposely, but if you are stupid and don't realize it, that's the problem. Pretty sure baby jesus wasn't rapey.

What about his dad?

[traptor]

Howden getting blasted.

Gave up all his credibility and looks like an idiot to protect his hockey bros.

what a loser

[Aarongavey]

Hart’s lawyer’s argument that Howden is not a liar he is an idiot is pretty good.

[Strange Brew]

Unsophisticated and useless are what the defense team is saying. Which seems accurate.

[MBates]

Originally Posted by GioforPM

Usually you can't cross-examine your own witness - mainly meaning you can't ask leading questions or try to impeach them. You need permission to do so, and yes, it's essentially the "hostile witness" concept.

IMO what happened here is that they knew they needed these guys to give evidence they needed to get out there, so they had to call them. But they also knew there'd be a bunch of very unhelpful evidence and would be reluctant to give the stuff which was harmful to their buddies. So they probably planned to do this all along.

I would agree they would have a contingency plan for this, but it would be beyond belief the Crown would put up a witness they believed would lie just so they could run an adverse witness application in hopes of getting something they could use out of a witness they will be telling the court is a perjurer.

According to the CBC report, the Crown has applied under section 9(2) of the Canada Evidence Act to be allowed to cross examine their own witness, Howden, on the basis he is feigning a lack of memory. In other words, the Crown is alleging their own witness is lying under oath in an attempt to not present damning evidence he could give against the accused.

This is a rare application for many reasons, perhaps the best of which is one a senior prosecutor gave at an education seminar on this topic many years ago: as a prosecutor with the burden of proof, about the best you can hope for after this type of application is to neutralize your adverse witness. Unless you can show one of the accused was involved in the witness feigning a lack of memory, then all you end up doing is proving the witness is prepared to lie under oath for whatever are his own reasons.

What could get very interesting though is if the judge grants the Crown application then they may get in via cross-examination what appears to be some seriously terrible evidence for the accused...corroborating various aspects of the complainant's version of events.

If that happens, then a common approach of the defence would be to obliterate the credibility and reliability of the witness in their cross exam (and as noted above, leave them neutralized and of no use to either party). But when the witness has been apparently omitting harmful things as opposed to testifying positively to a different version of harmful things, then who knows what the defence will think is the best strategy...keeping in mind there are likely more witnesses still to come.

I am a little surprised the Crown did not first attempt to cross examine Howden on inconsistencies in the prior statements without alleging a feigned lack of memory and an apparent request that Howden be declared an adverse witness. That is a permissible application under section 9(2). It seems that would have been a more plausible way to potentially get him to reluctantly adopt his prior statements in a manner that they could still be useful for the prosecution.

[Funkhouser]

Originally Posted by Strange Brew

Unsophisticated and useless are what the defense team is saying. Which seems accurate.

Savard also described Howden as unsophisticated, that he didn’t come dressed for court (he was wearing a hoodie) and that he was inarticulate, a poor communicator and careless with words.

Savard said if his feigning memory was deliberate, you would expect a general trend towards being helpful.

“I would say, if anything, we may all say at the end of the day this witness is generally useless, but certainly not helpful to the defence,” Savard said.

It may not be the thread for jokes, but this cracks me up.

Brett Howden adjectives:
-unspophisticated
-inarticulate
-generally useless

[GioforPM]

^^ if his prior inconsistencies came from the inadmissible investigation interviews they may feel cross examination may be the way to get this stuff.

[IliketoPuck]

I also wonder if this is a way to start shedding light on communication and story coordination efforts between the accused.

[The Big Chill]

Some pretty big discrepancies from what they are saying in court.

From the CBC site:

Spoiler!

Cunningham also read from a 2018 text message from Howden to world junior teammate Taylor Raddysh, in which he wrote: “Dude, I'm so happy I left when all the #### went down. Ha ha.”

And then he says: “Man, when I was leaving, Duber was smacking this girl's ass so hard. Like, it looks like it hurts so bad.”

[chedder]

Gotta be more to the statements, "before things got out of hand", that several of them have been quoted as saying.

[Aarongavey]

Originally Posted by The Big Chill

Some pretty big discrepancies from what they are saying in court.

From the CBC site:

Spoiler!

Cunningham also read from a 2018 text message from Howden to world junior teammate Taylor Raddysh, in which he wrote: “Dude, I'm so happy I left when all the #### went down. Ha ha.”

And then he says: “Man, when I was leaving, Duber was smacking this girl's ass so hard. Like, it looks like it hurts so bad.”

What should we believe though, what they texted at the time outside the group coordination chat or what they said in court after the group coordination chat?