It is generally impermissible to prove that at some time before testifying, a witness made statements consistent with her testimony. This is
because such statements are usually viewed as lacking probative value and being self-serving.12Prior consistent statements tend to lack probative value because the credibility of a statement is not enhanced simply because the same statement has been made before. In the words of Twaddle J.A., "Consistency is a quality just as agreeable to lies as to the truth."13If admitted to show that a witness is speaking honestly the evidence of prior consistent statements is therefore of no value. On the other hand, consistency can be relevant to memory. The fact that a story is told consistently with an early version can counter any suggestion that the details being provided are the inaccurate product of a faulty memory. Notwithstanding this, the potential prejudice of allowing the testimony to be repeated supports the general rule prohibiting proof of prior consistent statements. It may gain false credence in the eyes of the trier of fact through the consistency with which it is asserted.
Prior consistent statements are "self-serving" when offered to bolster the credibility of what a witness is saying by showing that the same witness said the same thing before.14The Crown in R. v. S.(F.) violated this rule when he read to the jury the entire statement of a testifying witness.15Where the prior statement is being offered to establish the truth of what it asserts, the hearsay rule is also infringed.16As a general rule, then, the content of prior statements that are consistent with the "in-court" testimony of a witness cannot be proved by the party calling that witness. The rule can even be offended where the content of a previous consistent statement is disclosed only indirectly. In R. v. Demetrius, for example, it was considered to be proof of a prior consistent statement for the Crown to show that as a result of information received from the complainant, the police went looking
for Demetrius as the suspect. Even though the officer did not repeat the previous conversation, it was obvious by implication that the complainant had identified Demetrius as the attacker during that conversation, consistent with what he was saying in his testimony.17There are a number of exceptional cases where prior consistent statements of witnesses can be proved. Where this is permitted, the relevance of those prior consistent statements is yielded without inferring that because the witness said the same thing before, the witness is credible. Instead, the "circumstances [in which the statements are made support other kinds of inferences that] render evidence of prior consistent statements of potential significance to the trier of fact, either with respect to the credibility of the declarant/witness or with respect to a fact in issue."18If prior consistent statements are proved pursuant to an exception, it will be an error in a judge alone trial to use those statements for an improper purpose,19or in a jury trial if the judge fails to direct the jury adequately on their proper use.20
Occasionally the fact that a statement has been made will raise relevant and permissible inferences. For example, in R. v. Edgar21the accused claimed to have a disordered mind at the time of the killing. The words spoken by the accused after the killing were nonsensical, supporting the inference that at the time his mind was in fact disordered. Although those comments included denials of guilt consistent with his testimony at trial, the defence was permitted to prove Edgar’s prior consistent statements, not to show consistency, but as circumstantial evidence of his disordered mind. As will be seen, the circumstantial value of prior consistent statements is not confined to proving the state of mind of the speaker, but where they are offered for that purpose, state of mind must of course be in issue.22
Prior consistent statements made by a witness are not admissible to counter the simple claim that the testimony of that witness is false.23
If an opposing party claims, however, that the testimony of a witness has been "recently" fabricated, prior consistent statements that serve to rebut the allegation of recent fabrication will be admissible. To take an easy example, if a witness testifies to a fact and is then cross-examined about her failure to include that fact in her signed witness statement, it is implicit that the cross-examiner is suggesting that the omitted fact was made up, or added, after the point in time when the witness statement was signed. Proof that the witness had asserted that omitted fact prior to writing the statement rebuts this suggestion.24It should be clear that the relevance of the prior consistent statement does not come from the simple fact of consistency. It is the timing of the prior consistent statement that is important. The timing of the statement demonstrates that the version testified to is not new or "recent" as was alleged. Since the prior statement rebuts the possibility of recent concoction only if it is consistent with the impugned testimony, it will typically be necessary for the contents of the prior statement to be proved.25Given that they depend for their relevance absolutely on their timing, prior consistent statements are capable of rebutting an allegation of recent fabrication only where they predate the point in time at which the opposing party claims the version of events was first fabricated.26It is important to appreciate that statements admitted under this exception can only be used to rebut the claim of "recent" fabrication. They cannot be relied upon either as accurate statements of what happened in their own right (their hearsay purpose) or as confirming or corroborating the in-court testimony.27They do not, therefore, add weight to the credibility of the testimony. The prior consistent statement is simply used to knock the "recent" fabrication challenge off the scales, returning them to the balance they had prior to the "recent" fabrication challenge. This does not mean it is wrong to recognize, in cases where recent fabrication has been alleged, that proof of a prior consistent statement has, in a narrow sense, "strengthened" or "rehabilitated" or "supported" the
credibility of the witness. Specifically, the prior consistent statement strengthens the testimony by removing the challenge that has been made. This leaves the evidence stronger than it would be if that challenge remained as an accurate indictment of the testimony. The prior consistent statement does nothing, however, to make the testimony stronger than it was when originally offered. The in-court version still stands on its own after the challenge has been fended off, bearing the weight it deserves in its own right. It is therefore "permissible [in this narrow way] for [the fact that a prior consistent statement has been made] to be taken into account as part of the larger assessment of credibility."28The case of R. v. Stirling is illustrative. Stirling, charged as a result of a fatal collision, was defending the case by denying he was the driver. He attacked the credibility of the Crown’s key witness, Harding, by suggesting that Harding only identified Stirling as the driver to advance a civil suit Harding had brought against Stirling, and in return for the Crown dropping charges against Harding. Proof that Harding identified Stirling as the driver before commencing the civil suit and before the Crown’s decision to withdraw the charges against Harding rebutted these specifically alleged motivations and, in that sense, strengthened Harding’s evidence by removing those alleged motives. Harding’s prior consistent statements did not, however, do anything to prove affirmatively that Harding’s testimony that Stirling was driving was true. As the Supreme Court of Canada put it, "The fact that Mr. Harding reported that the appellant was driving on the night of the crash before he launched the civil suit or had charges against him dropped does not in any way confirm that the evidence is not fabricated. All it tells us is that it wasn’t fabricated as a result of the civil suit or the dropping of the criminal charges."29The recent fabrication rule has long befuddled lawyers and judges. In part this is because the term "recent fabrication" is something of a misnomer.30First, the alleged fabrication need not be "recent" relative to the trial or hearing; it is enough if the claim is being made that the "fabrication" occurred at or around some identifiable point in time after the event being attested to.
Indeed, even the term "fabrication" is a misnomer. As the "witness statement" example used earlier demonstrates, the rule can operate to rebut the suggestion that a witness has, over time, become confused. For this reason the definition offered in R. v. O’Connor, that "recent fabrication" is "an allegation that a person has made up a false story, after the event in question, to meet the exigencies of the case,"31is problematic.
For the most part, though, confusion springs from the failure to hold onto the underlying function served by the exception. What is being rebutted is the...