Fairness and Cross-Examination Under Browne v. Dunn
Written by: Seanachie Clark, Student-at-Law
What Is the Rule in Browne v Dunn?
Browne v Dunn is a decision that comes from the British House of Lords in 1893. The rule that is established in Brown v Dunn is a foundational principle of fairness in legal proceedings that is still followed today. The rule sets out that if a party intends to challenge the credibility or accuracy of a witness’s evidence on a particular point, that challenge must be put directly to the witness during cross-examination. ₁ In other words, if you plan to argue that a witness is lying, mistaken, or otherwise unreliable about a specific fact, you must give them the opportunity to respond to that allegation while they are still being cross-examined.
The rule is stated in the decision as:
“If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it be otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his story or the story is of an incredible and romancing character”
How Does the Rule Apply in Trials and Arbitrations?
The rule applies broadly in both court trials and arbitration hearings. Essentially, it applies in any setting where witnesses give evidence, and their credibility may be questioned. ₂
During cross-examination, if a party intends to later submit evidence or make arguments that contradict a witness’s testimony, the witness must be confronted with those contradictions. This allows the witness to explain, clarify, or defend their version of events before the judge or arbitrator. If a party fails to put their challenge to the witness, they are generally precluded from later arguing that the witness was untruthful or mistaken on that point. ₃ Courts and arbitrators may disregard arguments or evidence that were not properly put to the witness, as it would be unfair to criticize a witness without giving them a chance to respond.
Why Is the Rule Important?
The rule in Browne v Dunn is not just a technicality for lawyers, it is a safeguard for fairness and due process.
Its main purposes are:
Preventing Unfair Surprise: Witnesses should not be discredited or accused of dishonesty without having the opportunity to address those allegations.
Ensuring Fairness: The rule ensures that all parties and witnesses are treated fairly, and that the trier of fact, whether judge or arbitrator, hears both sides of any disputed issue.
Considerations for Lawyers when applying the Rule
Lawyers must weigh the strategic implications of how they apply the rule. There may be a temptation to withhold certain contradictions during cross-examination to avoid revealing the full extent of one’s case. However, this approach carries risks:
Limiting Contradictory Evidence: If a contradiction is not put to the witness, the lawyer may be precluded from introducing evidence on that point later, or from making submissions that the witness was untruthful or mistaken. ₄
Impact in Civil Actions: In civil litigation, where pleadings are detailed and examination for discovery is available, the risk of unfair surprise is reduced. The parties often have advance notice of the issues and evidence, which can mitigate the need for exhaustive cross-examination on every point. ₅
Matters of Substance vs. Detail: The rule does not require every detail to be put to the witness, only matters of substance. ₆ Determining what is “substantial” enough to require cross-examination is a matter of judgment and may be influenced by the significance of the issue to the case. ₇
An additional consideration when applying the Rule in Browne v Dunn is that there is no need to put a contradiction to a witness if it is obvious that counsel is putting the witness’s credibility into question. ₈ Further, a lawyer is not required to follow the Rule if a witness is given unmistakable notice prior to questioning that their credibility would be impeached. ₉
Practical Realities and Remedies
In practice, courts and arbitrators are reluctant to rigidly apply the Rule and exclude contradictory evidence solely because of a technical breach of the rule. ₁₀ Preventing a party from presenting relevant evidence could undermine the truth-seeking function of the trial. The most common remedy for failure to follow the Rule in Browne v Dunn is to re-call the witness to address the evidence. This upholds the Rule’s purpose of fairness.
SB LLP: Your Experienced Litigation Lawyers in Edmonton
For anyone involved in litigation or arbitration, it is crucial to understand the rule in Browne v Dunn. Failing to observe this rule can result in important evidence or arguments being excluded and can undermine the credibility of a party’s case. Ultimately, the rule is about fundamental fairness. If you intend to challenge someone’s truthfulness or accuracy, you must give them a fair chance to respond while they are still able to do so. ₁₁
If you’re navigating litigation or arbitration and want to ensure the Rule in Browne v. Dunn is properly applied, one of our trusted Edmonton lawyers at SB LLP can help you protect your case, your evidence, and your credibility. Contact SB LLP for guidance tailored to your situation.
FAQs About the Rule in Browne v. Dunn
1. What is the Rule in Browne v. Dunn in simple terms?
The Rule in Browne v. Dunn is a fairness rule used in court. It means that if a lawyer plans to say a witness is wrong or lying, they must ask the witness about it directly during cross-examination. This gives the witness a chance to respond before the case ends.
2. Why does the Rule in Browne v. Dunn matter?
It protects fairness at trial. No one should be accused of lying or mistaken after they leave the witness stand without having a chance to explain themselves. Judges rely on this rule to make sure both sides have been heard properly.
3. How does this rule affect my case?
If your case involves witnesses, either in court or arbitration, the rule can impact what evidence is allowed and how credibility is judged. If the rule isn’t followed, certain arguments or evidence might be ignored. A skilled Edmonton lawyer from our team can help make sure the rule is applied correctly so your case isn’t weakened.
4. Does the Rule in Browne v. Dunn apply outside of court?
Yes. It also applies in arbitrations, hearings, and other legal settings where witnesses give evidence. Wherever credibility matters, the rule usually matters too.
5. What happens if a lawyer doesn’t follow the Rule in Browne v. Dunn?
The court may not allow them to argue that a witness was lying or mistaken. Sometimes, the judge may even ask for the witness to come back to address the issue. Not following the rule can seriously harm a party’s case, which is why working with an Edmonton lawyer familiar with trial rules is important.
6. Do all contradictions need to be put to a witness?
No. Only important or “substantial” issues must be put to a witness. Small details that don’t change the outcome usually don’t require cross-examination on every point.
7. How can an Edmonton lawyer help me understand this rule?
An Edmonton lawyer can explain how the rule affects your specific case, make sure the other side follows it, and ensure your evidence is presented properly. They also help protect your rights if someone challenges your credibility. If you believe the Rule in Browne v. Dunn may impact your matter, or you simply want to ensure your rights and evidence are fully protected, contact SB LLP to speak with an Edmonton lawyer who can guide you through your next steps with clarity and confidence.
¹ Browne v. Dunn, 1893 CanLII 65 (FOREP) [Browne].
² Supra Browne.
³ Supra Browne.
⁴ Supra Browne.
⁵ Supra Browne.
⁶ Supra Browne. R v Garinian, 2018 ABPC 259 at para 16.
⁷ R. v. Quansah, 2015 ONCA 237 at paras 80 and 85.
⁸ R v Clark, 2015 ABCA 160 at para 7.
⁹ Supra Browne.
¹⁰ R. v. Melnick, 2005 ABPC 220 at para 47.
¹¹ Supra Browne.
