4. Prior Testimony

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 138-143

Contenidos

• 4. 1) The Common Law Exception.
• 4. 2) Admissibility under the Rules of Court.
• 4. 3) Admissibility under the Criminal Code.

Page 138

Testimony given at a prior proceeding, if offered for its truth, is hearsay. Wigmore disagreed. In his view, prior testimony was not hearsay and no exception need be created because the evidence had already been subjected to cross-examination.¹⁰¹Arguably Khelawon supports Wigmore’s position in that the Court defined hearsay in terms of (1) a statement tendered for its truth and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. The Court, however, in its reasons did address R. v. Hawkins, which is a prior testimony case, and treated it as hearsay and in need of a hearsay exception. Certainly in terms of the present hearing, the earlier testimony is an out-of-court statement, and the current trier of fact is denied an opportunity to ob-serve the witness give evidence.

The existing hearsay exception for prior testimony is shaped by the general principles of necessity and reliability. The necessity for admitting the prior testimony is grounded in the unavailability of the witness. Reliability rests on the fact that at the prior hearing the witness was under oath, and was available for cross-examination, and there is an accurate transcript of the testimony to be tendered. One might assume that, given these safeguards, any and all prior testimony ought to be admissible. Such is not the case. The common law rule is crafted in far narrower terms.

4. 1) The Common Law Exception

At common law, evidence given in a prior proceeding by a witness is admissible for its truth in a later proceeding provided

· the witness is unavailable;

· the parties, or those claiming under them, are substantially the same;

Page 139

· the material issues to which the evidence is relevant are substantially the same; and

· the person against whom the evidence is to be used had an opportunity to cross-examine the witness at the earlier proceeding.

The common law exception is confined to testimony from prior proceedings where the issues and parties are substantially the same as in the present hearing. The requirements that there be "identity of issues" and "identity of parties" go to ensure that the party against whom the evidence is offered had an adequate opportunity to cross-examine the witness at the earlier proceeding. An actual cross-examination is not needed; the opportunity is enough¹⁰²- but it must have been an adequate one. In terms of "identity of issues," it is not necessary that all the issues in the two actions correspond; nor is it necessary that the causes of action be the same. What is required is that "the evidence relates to any material issues that are substantially the same in both actions."¹⁰³This ensures that the cross-examining party in the earlier proceeding was motivated to challenge the evidence in the same way as the present party. The key, then, is identity of issues and of motive.

In terms of "identity of parties," the common law rule speaks of "the same parties." Why? In principle the requirement that all parties be the same is unnecessary. It really should not matter who is offering the evidence. The fundamental concern lies with the party against whom the evidence is being offered. This is the party now being denied the opportunity to cross-examine the witness, and this is the party who needed to be present or represented at the prior proceeding.

To illustrate the scope and application of the common law rule, consider the following example:

D is charged with criminal negligence causing death. His defence is that it was not he who was driving the car at the time of the accident, but the deceased. Y testified at the criminal trial that he saw D driving just prior to the accident. Y dies. A civil case is now brought by the parents of the deceased against D for wrongful death. D, once again, claims that he was not the driver. Should Y’s prior testimony be admitted on this issue?

The parties are different, yet insistence that all parties be...