2. Prior Inconsistent Statements

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 129-134

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Prior inconsistent statements of non-party witnesses may be admitted for their truth on a case-by-case basis using the principled approach. Necessity is accepted whenever a witness recants his or her earlier out-of-court statement. Reliability is found either when the process in taking the prior inconsistent statement is sufficient to allow the trier of fact to assess its value against the witness’s in-court testimony or the statement is inherently trustworthy.

At common law, prior inconsistent statements made by a non-party witness, if offered for their truth, were not admissible unless adopted as true by the witness. They were admissible only as to credibility to show that on a prior occasion the witness said something inconsistent with the testimony now given.⁶⁶The trial judge typically would charge the jury as follows:

Ladies and gentlemen of the jury, as to the evidence concerning what was said in the statement, I must ask you to bear in mind that the only evidence you can consider from the witness is the evidence given in this courtroom. I must direct you that what was said in that statement is not to be taken as evidence of the truth. The statement serves only to test the credibility of the witness.

Such a limiting instruction has been described as "pious fraud."⁶⁷

Yet, there are valid concerns underlying the orthodox rule. First, there is something incongruous about accepting as true the prior inconsistent statement of a witness whose sworn testimony at trial is not believed. Second, there is concern about pressures and inducements brought to bear in the making of these statements. Both of these concerns are readily seen in the Supreme Court of Canada’s decision in R. v. B.(K.G.) (commonly referred to as K.G.B.), where the Court recognized that in appropriate circumstances prior inconsistent statements could be admitted for their truth.⁶⁸K.G.B. presented a clear case for the court. Simply put, the prior inconsistent statements were needed to be introduced for their truth, or the Crown had no case. The accused, a young offender, was charged with murder in a stabbing death. The victim and his brother were walking home in the early-morning hours when they got into a fight with

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four young male occupants of a car. In the course of the fight, the victim was stabbed and killed by one of the youths. The Crown called the three other occupants of the car. Each had given separate statements to the police. Each was videotaped. Each was made with a parent present, and in one case the mother, a brother, and a lawyer were present. Each statement implicated the accused. At trial, each recanted. Each admitted making the statement, but denied that it was true. The trial judge found that each had lied on the stand and, in turn, he had no doubt that the out-of-court statements were true. But under the existing law these statements could not be admitted for their truth. Accordingly, there was insufficient evidence to establish the accused’s identity, and the charge against him was dismissed.

In the Supreme Court of Canada Chief Justice Lamer, for the majority, applied the principles of necessity and reliability from Khan and Smith. Obviously in the circumstances, necessity could not be equated with unavailability. The makers of the statements were present and could be cross-examined. Necessity arose from the fact that the statements were important evidence going to prove what actually occurred, which otherwise would be lost. Chief Justice Lamer explained:

In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, "hostage." The different "value" of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial.⁶⁹And in subsequent cases, the Supreme Court has confirmed that the necessity criterion is met whenever a witness recants.⁷⁰The question of reliability was more troubling for the Court, notwithstanding the fact that the maker of the statement was present and could be cross-examined. The problem is that the trier of fact is being asked to choose between two statements - one made out of court and the other made in court with all the trial safeguards. In these circumstances, Chief Justice Lamer stated that the reliability concern was "sharpened" and he called for "comparative reliability" between the two statements. Ideally he wanted to replicate all the trial safeguards of oath, presence...