Today In Court – Tuesday March 15, 2016

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“Cumulative Evidence”

Unfair prejudice, Confusing the issues, Misleading the jury, Undue delay

Cumulative evidence was the subject of a defense counsel objection, raised at the onset of proceedings this morning. The issue at hand is the continual presentation of similar, if not identical evidence through different witnesses. For an example, lets say 20 people see the same occurrence with little to no difference in their observations. And, lets say that the nature of the event witnessed is distressing to listeners when it is retold. After one or two retellings of this same evidence, the facts just repeat and repeat with no additional value. To continue calling on more and more witnesses to give the same evidence is what is called cumulative evidence, or piling-on. The tactic in this case might be used to prejudice the jury against David & Colette; subjecting the jury to the telling and retelling of how sick and distressed Ezekiel was through each doctors’ perspective. Every time eliciting an emotional response that prosecutors could use to saturate the jury’s deliberations. The defense counsel referred the judge to several cases where appeal courts ruled this practice as prejudicial and non-probative; meaning not adding to the finding of facts. New trials have been ordered for such cumulative tactics.

The Crown argued vehemently that they require each expert doctor to witness on some unique perspective in the case. However, to those listening, its more like each doctor is given a new line to read into the same story; telling the same story from beginning to end each time. “He was very sick … and he died”. And so far, the new lines read into the same story are restating facts, just using different words (a matter of semantics).

Defense counsel seemed correct in raising this objection. However, it was late afternoon when the judge ruled to allow the Crown to continue calling on their next expert witness. The Crown then called Dr. Barbara Ross, a Pediatric Intensivist, expert in the same areas of yesterday’s witness, Dr. Shawna Burkholder. And yes, Dr. Ross read to the jury the same story, in a slightly different tone.

It seems clear to some, that the Crown Prosecutors have two strategies in play while they seek for a conviction. One is to make an example out of Dave & Colette; to implant in all parents the notion that doctors are the best judge of the health and treatment matters of their children. This plays well for the medical establishment. They already overstep their consulting and treatment roles, into more authoritative and enforcement roles. Is it the obligation of parents to live subordinate to medical professionals? What is never asked of these doctors, as their CV’s are read aloud in court, is: “how many patients have died or become hindered under your care”? We only hear the sales pitch, never their performance stats. Second, is the effort on the part of the Crown to distance or disprove the fact that when EMS arrived to help Ezekiel, after the 911 call from his parents, they were not equipped to resuscitate Ezekiel who was under respiratory arrest. Likely, no fault of the technicians but Alberta Health Services who have taken a lot of heat already over the way they have structured emergency services in the province.