6. Relevance, Materiality, and Narration

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

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It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what a police officer was doing when a call was received, or whether the police officer was in a marked or an unmarked police vehicle. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence.67At times information that forms part of the natural narrative of an event is not simply trivial background information. Narrative information can be extremely prejudicial. In R. v. Smith,68for example, events

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could not be described without narrating the "daily" criminal pursuits of the accused, charged with murder. As a result, the jury learned as part of the narrative about discreditable conduct by the accused that would otherwise have been immaterial and inadmissible. Care must be taken with the narrative doctrine; prejudicial information should gain this kind of "back door" entry only where significant testimony cannot be recounted meaningfully and fairly without its disclosure. Even then, the testimony should be edited pursuant to the judge’s exclusionary discretion to the extent it can be, to minimize any damage that may be done. When immaterial, prejudicial or otherwise immaterial information does piggy-back its way into the record as part of the narrative, judges must avoid relying on it for improper purposes; and in jury trials, if there is any risk that jurors could misuse the evidence, judges must give limiting instructions directing those jurors as to the limitations on the use that the evidence can be put to.69The idea that some things are part of the story has influenced the development and application of a number of rules of evidence. The res gestae hearsay exceptions, for example, are premised to differing degrees on the relationship in time between the statements and the events those statements describe or reveal.70Prior consistent statements made by a witness are not normally admissible, although the doctrine of "narrative" is sometimes used to justify leading some evidence that the witness made statements out of court.71Fortunately, more is required to justify admission in these cases than the simple fact that the statements form part of the story. Each of...

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