Ghomeshi’s Lawyer Picks Apart Another Witness, But It Might Not Be as Damaging as It Looks

As a third and final complainant took the stand Monday morning to testify that former CBC host Jian Ghomeshi strangled her without her consent, a question hung over the proceedings: How would his defense lawyer eviscerate this one?

Media coverage around the Ghomeshi trial over the last week has focused on defense lawyer Marie Henein's ruthless cross-examinations, in which she has used emails, texts, letters, and police interviews to poke holes in the testimony of Ghomeshi's accusers, repeatedly calling them liars. Columnists and reporters alike have said Henein has undermined the credibility of two witnesses so far, raising the question of whether Ghomeshi could walk free as a result.

But it turns out that the witnesses may not have been completely discredited in the eyes of the court after all. In fact, it's quite the opposite, at least according to a criminal lawyer who has lurked the trial's overflow room for the last week, and who spoke with VICE.

The lawyer, who didn't want to be named because he doesn't want to be seen to be seeking publicity and didn't want to be viewed as criticizing Henein because he's met her professionally, has been watching the trial all day every day, to see Henein at work during her cross-examinations.

On Monday, the third witness testified that she made out with Ghomeshi on a park bench, consensually in July, 2003. As he kissed her neck, she felt his hands on her shoulders and his teeth on her neck. "I felt his hands around my neck, all around my neck," she said. Then she said he put his hand over her mouth, smothering her, and she had trouble breathing. She told the court she couldn't remember some aspects of the alleged sexual assault.

But during Monday's cross-examination, the third complainant admitted she omitted an encounter with Ghomeshi in her police interview and only came forward with it on Friday when she realized the information would come out. She described giving Ghomeshi a consensual hand job after the alleged assault, but she hadn't previously disclosed that to police because she said it was embarrassing.

Speaking about all three witnesses, and witnesses in general, the lawyer told VICE that even if they misremembered details, it doesn't necessarily mean the judge wouldn't find them credible. The key is whether the judge would believe they were honest or not, which he will do partly by fact-checking their testimony with the evidence.

"She made a claim, and [the judge] will use the evidence to evaluate that claim," the lawyer said.

The lawyer added that even the witness's omission, which Henein rounded up to a lie, won't automatically discredit her entire testimony.

"There's no rule of evidence that I know of that if a witness is caught in a lie that means his honor is bound to exclude all of the evidence the witness has testified to." In other words, just because she omitted the encounter doesn't mean she lied about the alleged choking and smothering. "It doesn't automatically disclude the rest of her testimony," he explains.

The judge can consider that she's admitted to omitting the truth in one instance, but must make an overall assessment of whether the witness tells the truth most of the time, or lies most of the time.

"She has admitted to lying under oath during the police statement about not having any sexual contact with him. She didn't admit to lying about being choked. So his honor will have to consider whether that statement, that assertion is true or not."

"Even people who are not truthful have the capacity to tell the truth," he added.

"Generally the theory is, if people are lying they don't have a ready explanation. So they will hem and haw and their explanation won't be precise and clear if they're lying, that they have to invent a reason," the lawyer said, referring to the first witness, who can't be named due to a publication ban.

When Henein presented the first witness with an email she sent Ghomeshi after the alleged assault that included a photo of her in a bikini, she offered an explanation that she sent it to bait him into contacting her.

"She didn't seem to invent anything," the lawyer said. "It jogged her memory as to why she wrote it."

The first complainant's bikini email and the third complainant's omission of the hand job may seem to discredit them on first glance, but in the eyes of the judge, this evidence might not undermine their credibility.

"Evaluating evidence is a tricky issue," the lawyer said. "Judges don't throw the baby out with the bathwater just because a witness has made an inconsistent statement [or] forgotten an important detail. They look at the evidence as a whole and then they evaluate it based on other evidence and logic."

If media coverage makes it seem that Henein has already discredited the witnesses, it could be confusing if the judge finds Ghomeshi guilty in some capacity, he said.

"It could set up for a verdict that [the public doesn't] understand," he said.

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