3. Prior Statements of Witnesses: Absence of Contemporaneous Cross-examination

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages107-108

Page 107

Hearsay is concerned with out-of-court statements - any statement made other than by the witness while testifying in court. What of outof-court statements made by the witness who does testify? The maker of the statement is present and can be cross-examined. For example, in our drunk-driving scenario, assume that P is called as a witness. P testifies as to having observed the accused drinking. However, P cannot recall exactly how many drinks the accused had or the various signs of intoxication that he had exhibited. P does recall telling W all these details. Is it hearsay for W to relate P’s out-of-court statement? After all, P is present in court, under oath, can be observed, and can be cross-examined on the making of that statement. Is P’s out-of-court statement hearsay? Yes.

The Supreme Court of Canada in R. v. Khelawon has made it clear that the traditional law of hearsay extends to out-of-court statements made by the witness who does testify in court when that out-of-court statement is tendered to prove the truth of its contents.7The rationale for the general exclusionary rule lies in the difficulty in testing the reliability of the out-of-court statement. A premium is placed on in-court testimony. The witness who testifies in court is under oath, can be observed by the trier of fact and is available for cross-examination. Cross-examination is the key and is the fundamental tester of truth. Subsequent cross-examination may not be sufficient to test the reliability of the out-of-court statement. It is important to note that this does not mean that the out-of-court statements made by witnesses are always excluded. Identifying the statement as hearsay is but a starting point. The statements may well be admitted under a hearsay exception, where difficulties in assessing the reliability of the out-of-court statements are addressed.

When a witness repeats or adopts his or her earlier out-of-court statement no hearsay issue arises.8For example, assume that the passenger in the drunk-driving case earlier in this chapter is called as a witness. She

Page 108

cannot recall the number of drinks that the accused had prior to driving. In an earlier statement to the police she told the officer that the accused had five to six drinks. Crown counsel may refresh her memory using her out-of-court statement. She reads over her statement and recalls the five to six drinks, which is now her evidence. The out-of-court statement triggered her...

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