Prior consistent statements

As a general rule, prior statements of a witness, including a complainant, are not admissible to bolster that witness's credibility. 



There are, however, established exceptions to the rule excluding evidence of prior consistent statements. 



One of those exceptions is the use of prior consistent statements to rebut a suggestion that a witness should be disbelieved because they recently made up the story told at trial.



An important limitation to the admission of prior consistent statements to rebut the suggestion of recent fabrication is that the statements, if admitted, do not make the facts asserted more likely. The statements merely speak to the assertion of recent fabrication.



Accordingly, as the recent Newfoundland and Labrador Court of Appeal decision in R. v. Ward, 2008 NLCA 38 makes clear, using prior consistent statements to support the truth of testimony at trial, even where the statements are admissible to rebut recent fabrication, is an error.



The Court writes:



[7]  However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness's story did not change as a result of a new motive to fabricate.  Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents.  As was noted in R. v. Divitaris 2004 CanLII 9212 (ON C.A.), (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, "a concocted statement, repeated on more than one occasion, remains concocted"; see also J. Sopinka, S.N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313). …