Daniel Rechtshaffen is a Toronto-based criminal lawyer
The general consensus is that the first two witnesses in the Jian Ghomeshi trial essentially imploded in court. A lot of people are angry about this. Much of the blame in the press and on social media is directed at the lawyers. Some blame the Crown attorneys for not doing their job; others, not appreciating the critical importance of a vigorous defence, slam Mr. Ghomeshi's lawyers for the manner in which they have conducted themselves. What we have not heard is criticism of the police.
The police have a critical role to play. The police need to ask the right questions: the questions they are trained to know will be asked at trial. If you know there are e-mails and letters that could undermine a witness's story, ask what they contain. Test the story through proper questioning. The police who take statements from complainants are not meant to be passive recipients of information; they are investigators. This does not mean you tear a witness apart when she comes to report a crime. This means you ask questions to assess the state of the case. See if the story is logical; gather the evidence that is out there – evidence that can hurt the witness's case, and evidence that can confirm their account.
It's not just sexual-assault cases that sometimes suffer from inadequate investigation. There are crimes of all sorts, for which some police simply record the witness's statement unquestioningly and then immediately proceed to charge an accused.
It's been said repeatedly during this trial that victims of sexual assault react in different ways. Some internalize guilt; some may delay reporting; some may still pursue someone who has abused them. There is no "right" way to respond to abuse. This is all absolutely correct.
Lawyers for the complainants in this case have reminded the public that this trial is about the illegal acts complained of, not what alleged victims did afterward. That's partly true. If Lucy DeCoutere wanted, thought she wanted, or feigned wanting a relationship with Mr. Ghomeshi after he allegedly choked and hit her, that would not make those assaults any less criminal. The problem arises when you state under oath that you never communicated such an interest, and that testimony is shown to be false through text messages and letters. It's not the words in the texts that are the problem; it's the misleading evidence under oath.
It would be easy – though inaccurate – to simply blame the Crown for the way this case has gone; the lawyers prosecuting this case are very experienced. The Crown has no way of knowing these e-mails and letters exist if the police don't include that information as part of disclosure. The Crown relies on police to present them with the evidence.
In this case, the complainants even had their own lawyers. It would have helped the witnesses if they had been asked whether there was anything they had done after the alleged offences that runs counter to their statements. Witnesses change their stories ahead of trial all the time and are still believed by courts. For example, people who are afraid of dangerous acquaintances who have robbed them may at first say they didn't know the perpetrator, later admitting they lied out of fear. If there was information out there that could be used to undermine these complainants' statements, someone should have thoroughly explored that far in advance of trial.
Women who have been victims of sexual assaults need their friends, family and support networks to say "we believe and support you." The police are not social workers. Their job is to collect evidence and probe the truth. A professional, proper investigation benefits complainants and accused persons equally.