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General Principles

Prior consistent statements are presumptively inadmissible.

Purpose of Rule

The prior statement is undesirable for several reasons. They are a form of hearsay and so like all hearsay are considered unreliable. They are also irrelevant and lacks probative value. It is a form of "oath-helping" (or self-corroboration) inappropriately enhancing the evidence. It is self-serving and self-corroborative without actually adding any value to the evidence. The consistent evidence encourages the inference that a story told consistently over time is more likely to be true even though “consistency is a quality just as agreeable to lies as to the truth”. Put another way, the "overwhelming danger" is the risk of using repetition of a statement as a "badge of trustworthiness."

A statement can be seen as having two components. There is the "hearsay component" and there is the "declaration component." The evidence is presumed inadmissible for the exclusion of hearsay rule and the prior consistent statement rule excludes it for the lack of probative value.

The rule "comes into play when the statement is being adduce for its declaration component" (i.e. the fact that the statement was made, not for the truth of the statement). This fact must be shown to be relevant to the case to overcome the prohibition.

Oath Helping

• see Credibility#Oath-helping

Implications

The rule against consistent statement prevents evidence from both the declarant and the recipient.

It is not open to a witness give evidence my simply adopting a prior statement. The judge is entitled to hear all evidence directly from the witness.

Standard of Review

A jury instruction on the use of a complainant's prior consistent statement is reviewed on a question of law.

Exceptions

There are various exceptions where the value of the evidence is separate from the Exceptions to the prohibition against admitting prior consistent statements include:

• Rebutting allegation of recent fabrication
• Prior eyewitness identification
• Recent complaint
• Show physical or mental state of accused (res gestae)
• Narrative
• emotional state of the complainant or witness
• Statements made on arrest
• Explanation of accused in possession of illegal goods
• Admission of video complaints (s.715.1, see Video Statement of Under 18 Year Old)

Where a prior consistent statement is admissible, it can only be used to rehabilitate the witness, which also means it can only go to credibility.

Where the statement is admitted, it must usually be accompanied by a limiting jury instruction.

When the prior consistent statement is received, it will not normally be for the truth of its contents but rather as circumstantial evidence of importance to the proceedings.

Prior Eyewitness Identification

Prior recordings of extemporaneous observations of a witness being tendered for the purpose of establishing recognition of the accused, is a permissible form of prior consistent statements.

This type of evidence may be used to give credence to in-court identification.

Statements of prior identification are not considered hearsay.

Recent Fabrication

The exception for recent fabrication applies where the statement shows that the statement has not changed "as a result of a new motive to fabricate." It is only statements given prior to the time when the motivation to collude arose.

It is not admissible for the truth of its contents.

Form of Allegation of Recent Fabrcation

The allegation of recent fabrication does not need to be explicit. There only needs be to an "apparent position" alleging a "prior contrivance." However, mere contradiction of the witness is not sufficient.

If a cross-examination suggests, either directly or indirectly, that a witness fabricated evidence and has reason or motive to do so, the party who called the witness may re-examine and lead evidence on a prior statement being consistent with the evidence in court.

Recent fabrication exception requires the circumstances to show that the "apparent position of the opposing party is that there has been a prior contrivance" Also, the prior statement was made "before a motivation to fabricate arose."

Where RF Does not Apply

The fact that the witness's "whole story" is being challenged does not necessarily mean that there is an allegation of recent fabrication.

The mere fact that a prior inconsistent statement was put to the witness does not automatically engage the RF rule to prior consistent statements. It is expected that the consistent statement be made after' the time of the alleged fabrication to be material to the issue of rebutting the allegation.

Recency of Alleged Fabrication

The "recency" element only requires that the witness made up a false story after the event in consideration. It not not actually need to be "recent" to the testimony.

Meaning of Fabrication

A "fabrication" can refer to evidence that the witness was influenced by outside sources.

Use of Prior Statement

The prior statement is not adduced for the truth of their contents.

Purpose of Rule

This rule can apply to rebut allegations of concoction to an accused who is incarcerated with a co-accused.

Jury Trials

Where a prior consistent statement is allowed in evidence on a jury trial, the jury must be given a limiting instruction on the use of the prior statement.

Rebutting Credibility Attack

A judge may refer to a prior consistent statement for the purpose of evaluating a defence allegation against credibility on account of a prior inconsistent statement on the same point of fact.

State of Mind

A prior consistent statement can be admissible, for its declaratory value, as circumstantial evidence showing the state of mind of a witness as long as it relates to a trial issue.

Spontaneous Utterance

A spontaneous and exculpatory statement of the accused shortly after arrest may be admitted to "show the accused's reaction when first confronted with the allegation, provided the accused testifies."

Narrative and Context

A prior consistent statement may be admitted as part of the narrative.

Understanding Material Facts

The evidence may be admissible as narrative evidence where it is necessary to "help the trier of fact to understand the case and to make the material facts more comprehensible." It is to help understand the "chronological cohesion" of the case. Acceptance of this evidence should be on condition of having no weight and cannot be used to bolster credibility.

As a precondition, the narrative evidence must be "truly essential" to the narrative.

In most instances this type of evidence is admissible for the purpose of showing how the complaint came before the court or to provide context to an admissible statement.

In a jury trial, the trial judge should give instructions that this narrative evidence can only be used is to "assist them in assessing complainant’s credibility, in certain circumstances, particularly where the complainant is a child, and they are not to use the statements as evidence of the truth of their contents."

Where it is admitted for this purpose in a sexual assault case, it can only be used to help the trier of fact "understand how a complainant’s story was first disclosed" It can also be used as narrative to explain why the complainant did not initially report any abuse.

Assist in Credibility Assessment

PCS can be used to assess credibility when considering things such as:

• the "context in which the initial complaint arose, in particular the fact and timing of the complaint"
• understanding “the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness” or
• assessing if there is “evidence that an individual has a motive to lie".

The fact and timing of the prior statement may be relevant to credibility assessment.

Text Messages Sent by Complainants

Courts will usually permit the admit post-offence messages such as those "sent by a complainant following an alleged sexual assault under the narrative as circumstantial evidence exception to prior consistent statements." Such messages can be used "to assess the conduct of the complainant and her truthfulness in describing it, particularly when the defence used those messages to attempt to contradict her narrative of events and diminish her credibility."

See Also

• Hearsay
• Prior Inconsistent Statements