Admissibility of Prior Inconsistent Statements of a Non-Accused for Truth
Historically, an out-of-court
prior inconsistent statement of a non-accused witness was admissible only to
impeach the credibility of the witness. A prior inconsistent statement —
hearsay evidence — was not admissible for the truth of its contents unless the
witness adopted the prior statement in court. Otherwise, the jury was
limited to rejecting the viva voce evidence of the recanting witness; the jury
could not substitute the contents of the out-of-court statement.
This traditional rule excluding
prior inconsistent statements was altered in K.G.B. (R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R.
740) to conform with the evolving principled approach to hearsay. On an
exceptional basis, a prior inconsistent statement is admissible for the truth
of its contents, provided the threshold criteria of necessity and reliability
are established.
In K.G.B., at p. 787, Lamer C.J.
stated that the focus of the reliability inquiry, when dealing with prior
inconsistent statements, “is on the comparative reliability of the prior
statement and the testimony offered at trial, and so additional indicia and
guarantees of reliability . . . must be secured in order to bring the prior
statement to a comparable standard of reliability before such statements are
admitted as substantive evidence”.
Accordingly, Lamer C.J. held, at
pp. 795-96, that a prior inconsistent statement of a non-accused witness may be
admitted for the truth of its contents if the so-called K.G.B. reliability
indicia are met:
(1) the
statement is made under oath or solemn affirmation after a warning as to
possible sanctions if the person is untruthful;
(2) the
statement is videotaped or recorded in its entirety; and
(3) the
opposing party has a full opportunity to cross-examine the witness on the
statement.
(1) the
presence of adequate substitutes for testing truth and accuracy (procedural
reliability); and
(2)
sufficient circumstantial guarantees of reliability or an inherent trustworthiness
(substantive reliability).
Khelawon, at
paras. 61-63.
These two principal ways of
showing threshold reliability are not mutually exclusive.
R. v. Devine, 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283,
at para. 22.
R. v. Youvarajah, [2013]
2 SCR 720, 2013 SCC 41 (CanLII), at paras. 26-30.
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