Prior consistent statements

As a general rule prior consistent statements are inadmissible. The fact someone repeats a story consistently does nothing to enhance the story's truth value.

An exception to this exclusion is made where there is an allegation of recent fabrication -- 'you just made that up' -- so that the witness can be shown to have not just concocted the story.

Friday's Supreme Court decision in R. v. Ellard, 2009 SCC 27 illustrates the rule:

[31]                          Having described the relevant context, the first issue is whether Ms. Bowles' prior statements were admissible through re-examination.  It is true that prior consistent statements are presumptively inadmissible (R. v. Béland, [1987] 2 S.C.R. 398, at pp. 409-10, and R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5).  The rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony.  Because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution.

 

[32]                          Certain exceptions have nevertheless developed in the jurisprudence.  In particular, where a party has made an allegation of recent fabrication, the opposing party can rebut the allegation by introducing prior statements made before the alleged fabrication arose, that are consistent with the testimony at trial.  The allegation need not be express.  It is enough if "in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance"  (Evans, at p. 643; see also R. v. Simpson, [1988] 1 S.C.R. 3, at p. 24).

 

[33]                          To be "recent", the fabrication need only have been made after the event testified about (Stirling, at para. 5).  A mere contradiction in the evidence is not enough to engage the recent fabrication exception.  However, a "fabrication" can include being influenced by outside sources (R. v. B. (A.J.), [1995] 2 S.C.R. 413).  To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication.  In all cases, the timing of the prior consistent statements will be central to whether they are admissible.
James Morton
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