Testifying in court can be confusing. There are rules of evidence that prevent people from saying what many might think is important information. In this blog post, I discuss a development in a counter-intuitive testimonial rule, the inadmissibility of prior consistent statements.
This post is for everyone: people unfamiliar with the law, appeal lawyers, and evidence scholars. It’s a short discussion in which I look at a development and point out some cases in which the rule is applied. None of what I write is legal advice.
A prior consistent statement is something that a witness has previously said prior to testifying and wants to repeat in court. For example, if a person who was allegedly assaulted shouts, “I was just assaulted!”, the shout cannot be repeated in court as proof the person was assaulted. This does not make sense for a lot of people. Isn’t the fact that the person shouted, “I was just assaulted!” important information to consider in determining whether they are a victim?
The answer is that it could be important information. But what if the alleged victim is lying? Fool me once, shame on you; fool me twice, shame on me. And at the second time, we are in Court, deciding whether to criminally convict someone.
Prior consistent statements are presumptively inadmissible because the Courts do not want to be fooled twice. Prior inconsistent statements are deemed to lack probative value. The fact that a witness said the same thing on a prior occasion to what she said in court is not probative of whether the witness is offering truthful testimony in court. The rule’s rationale is that repetition does not render a statement more likely to be true or corroborative. The repetition is self-serving, the source lacking independence.
Not all prior consistent statements are inadmissible. There are some exceptions, and the exceptions are seemingly expanding.
One of those expanding exceptions is ‘narrative as circumstantial evidence’. In R. v. Khan, 2017 ONCA 114,1 the Court of Appeal for Ontario explained that a prior consistent statement is admissible if the circumstances surrounding the making of the statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony. The Court drew a line between permissible admissibility and impermissible use. Even if a prior consistent statement is admissible as narrative as circumstantial evidence, it cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony.
How do we know when a prior consistent statement assists in assessing the reliability and credibility of a witness' in-court testimony? The Saskatchewan Court of Appeal uses an analytical question. The Court stated in R v. Louie, 2014 SKCA 1072 at para. 16:
The question is this -- do the reasons show the trial judge used the prior consistent statement to support the credibility of the complainant's allegations (which would be an improper use of a prior consistent statement) OR do they show he was using the prior consistent statement to support the credibility of the complainant?
The distinction frames a classic perimeter around a prior consistent statement: the statement must have value beyond corroborating testimony of the allegation.
An example of the improper application of narrative as circumstantial evidence
In R. v. N.W., 2018 ONSC 7743, the accused was convicted of sexual assault after the complainant alleged that he groped and touched her over a three-hour period. The important facts from the case for our purposes are:
- The complainant sent text messages to friends about the assault.
- There was a strong temporal connection between the messages and the alleged assault; the complainant alleged that the messages were sent contemporaneously.
- The trial judge treated the messages as corroborative of the complainant’s testimony.
- The trial judge did not explain how the circumstances or surrounding context of the messages were probative of the complainant’s credibility. Instead, the trial judge stated: "I also find that the texts sent to her friends during the course of the evening are corroborative and supportive of her evidence."
The appeal court held that the trial judge’s use of the text messages fell outside of the permissible scope of narrative as circumstantial evidence:
It is clear that the trial judge used the text messages as evidence of their truth of their contents in order to corroborate M.M.'s the [sic] evidence. Unlike Khan, there is nothing in the trial judge's reasons that could reasonably support the argument that he limited his approach regarding his use of the text messages. He does not refer at all to the circumstances in which the texts were made or how the narrative of the disclosure supported M.M.'s credibility. I can only decide this appeal based upon what the trial judge said. Even assessing the trial judge's statements in the context of the reasons as a whole, the evidence presented, and the submissions of the parties, I find that the trial judge made a reversible error in admitting the text messages under a hearsay exception and then using them improperly in deciding the case.
Examples of the proper application of narrative as circumstantial evidence
The cases of R v Khan, 2017 ONCA 1144 and R. v. B.Z., 2017 ONCA 905 from the Court of Appeal for Ontario show the way in which narrative as circumstantial evidence is properly applied. Click on the hyperlinks to check the cases out.
In an oft-cited article, “The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013) 17 Can. Crim. L. Rev. 181 at p. 199, Justice Paciocco provided a number of examples in which narrative as circumstantial evidence was properly applied. In sum, there is a line of cases showing that narrative as circumstantial evidence is often used to rebut adverse inferences arising from delays in reporting:
In R. v. Ay, proof of the prior consistent statement and its timing was circumstantially relevant in confirming that it was fear of the accused that caused delay in complaining. In R. v. B. (O.), disclosing the timing of the complaint was helpful in showing that disclosure was prompted by a cathartic occasion, after a long delay, thereby explaining that delay.
Both the Supreme Court of Canada and the Court of Appeal for Ontario have noted that the line between the permissible and impermissible use of a prior consistent statement is a fine one. With ‘narrative as circumstantial evidence’, the line gets even finer.
Prior consistent statements come fast in modern criminal trials. Witnesses are frequently asked to read out prior consistent statements: text messages, emails, tweets. It is difficult for lawyers or a judge to determine on the fly whether these prior consistent statements are admissible. With the statements coming fast, and the ability to determine admissibility slow and confusing, it remains to be seen how much testimony trial and appeal courts admit under the relatively newly minted ‘narrative as circumstantial evidence’ exception.