The rule in Browne v. Dunn (the “Rule”) establishes that if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it.
This Rule is one of fairness, aimed at preventing witnesses from being ambushed by not giving them an opportunity to state their position with respect to later evidence which contradicts them on an essential matter. The Rule’s application is not fixed, but lies within the sound discretion of the trial judge and depends on the circumstances of each case.
Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot be determined in the abstract. Each case is different. The rule is flexible, not rigid. Reasonable people may differ about which side of the line a failure to cross-examine on a particular point falls. A trial judge should be accorded considerable deference on a decision about the Rule’s application.*
William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.