Proper use of prior consistent statements at trial

R. v. J.A.T., 2012 ONCA 177 is almost a course in evidence. In allowing an appeal Justice Watt reviews many areas of evidence law -- one is the proper (but limited) use of prior consistent statements. He writes:

[3]          The appellant says that his trial was unfair, his convictions a miscarriage of justice, because the trial judge permitted the trial Crown to introduce a lot of inadmissible evidence.  Hearsay.  Bad character.  Opinion.  Prior consistent statements. To make matters worse, the appellant says, the trial judge failed to give the jury essential limiting instructions to confine their use of admissible evidence to what the law permits, and to tell them not to use what had been wrongly admitted.

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[96]       Another exclusionary rule prohibits introduction of prior consistent statements made by a person called as a witness at trial.  Once again, the exclusionary rule is of general, but not unyielding application: R. v. Stirling 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31.  The principal justifications underlying the exclusionary rule are that prior consistent statements lack probative value and constitute inadmissible hearsay if tendered to prove the truth of their contents: Dinardo, at para. 36; Stirling, at para. 5; and Ellard, at para. 31.

[97]       Among the recognized exceptions to the rule generally excluding prior consistent statements of a witness, are recent fabrication and narrative: Ellard, at paras. 32-33; and Dinardo, at para. 37.

[98]       Where one party has made an allegation of recent fabrication in connection with a witness called by the opposite party, the opposite party can rebut the allegation by introducing other statements the witness made before the alleged fabrication arose, that are consistent with the witness' trial testimony: Ellard, at para. 32. A "fabrication" can arise because outside sources have influenced the witness: Ellard, at para. 33; R. v. B. (A.J.), [1995] 2 S.C.R. 413, at para. 1. To be "recent", a fabrication need only have been made after the event about which the witness testifies. The rebutting statements must have been made before the alleged fabrication arose: Ellard at paras. 32-33; and Stirling, at para. 5.  The rebutting statements are not evidence of the truth of their contents.

[99]       Sometimes, prior consistent statements may be admissible as part of the narrative, to help the trier of fact understand how a complainant's story was first disclosed: Dinardo, at para. 37; R. v. C. (G.), [2006] O.J. No. 2245, at paras. 20-22.  The narrative exception does not permit use of the prior consistent statements to confirm the truthfulness of the sworn allegation, but does permit its use to show the fact and timing of a complaint, which may help the trier of fact to assess truthfulness or credibility: Dinardo, at para. 37.

[100]    Both the recent fabrication and narrative exceptions to the rule prohibiting the introduction of prior consistent statements permit introduction of the prior statements for a limited purpose.  As with other items of evidence received for a limited purpose, the trial judge should instruct the jury about the limited value of this evidence. The instructions should make it plain that the jurors are not to consider the contents of the statements as proof that a crime has been committed: R. v. F. (J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.) at p. 476.