PRIOR INCONSISTENT STATEMENTS AND THE APPLICATION OF R. v. K.G.B.

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1 PRIOR INCONSISTENT STATEMENTS AND THE APPLICATION OF R. v. K.G.B. Brian D. Williston THE ORTHODOX RULE Until recently, the "orthodox rule" dictated that prior inconsistent statements made by a non-party witness were not admissible for their truth unless adopted in court by the witness. Limited Use The only limited use which could be made of these statements was to attack the "credibility" of the witness; that the witness had made a prior inconsistent statement which could be considered not for the truth of its contents but only to impeach the credibility of the witness' testimony. No Testimonial Value The instruction to the jury or trier of fact was that such a statement had absolutely no testimonial value. The inflexibility of this rule came under attack by judges, legal scholars and lawyers for depriving triers of fact from highly probative evidence. 1

2 2 MODERN APPROACH In recent years we have seen the Supreme Court of Canada take a more flexible approach to hearsay in cases such as Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.) and Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.) in a concerted effort to balance the rights of an accused with society's right to be protected by means of the truth seeking process in a criminal trial. Policy considerations for treating the hearsay ntle as absolute have effectively disappeared ~ juries are more sophisticated and modem technology such as video/audio recording has an important place in ensuring accurate records of statements. THE K.G.B. DECISION The Supreme Court of Canada was called upon to reconsider the rule on the limited use of prior inconsistent statements and released its decision on February 25, 1993 in R. v. K.G.B. (1993) 79 C.C.C. (3d) 257,19 C.R. (4th) 1. The facts ofk.g.b. brought home the absurdity of the inflexible orthodox rule which did not allow any discretion to the trial Judge to admit the statement for the truth of its contents. In that case, the accused, a young offender was tried for second degree murder. The accused and three other young men had been in a car driven by another young man (Joseph Wright) and his brother. The youths got out of their car and a

3 3 fight ensued wherein one of the four males slashed Joseph Wright's face twice with a knife and then stabbed him in the chest killing him. The deceased's brother had difficulty identifying his attacker and his description at trial was of little value to the trial judge. However, three of the young men with the accused gave video taped statements to the police about two weeks after the murder in which each stated that the accused told them he had killed the victim with a knife. At trial, the three recanted their earlier statements and the trial judge allowed the Crown to cross-examine them on their prior statements pursuant to s. 9 of the Canada Evidence Act. The three witnesses testified that they had "lied" to the police. They denied seeing a weapon any more lethal than a windshield scraper. They said they lied to the police to get themselves out of trouble. (All three had parents with them, and the third had a lawyer present when giving the statement to the police). The trial Judge was not prepared to leave it at that. He found that each of them lied in court and concluded that he had no doubt that what they said in their statements about the accused's admissions were true. But he had a dilemma. Although he believed beyond a doubt that what the youths said in their videotaped statements was true, as a matter of law because the statements were not adopted by the witnesses in court, he was prevented from accepting the statements as evidence. The only use that could be made of the prior inconsistent statements by the witnesses was with respect to their credibility. Since the identification evidence by the victim's brother was insufficient on its own, the

4 4 accused was acquitted. On appeal by the Crown, the Ontario Court of Appeal also felt bound by earlier judgements of the Supreme Court of Canada and dismissed the Appeal. On appeal to the Supreme Court of Canada, the judgement declared that the traditional rule that prior inconsistent statements are not admissible on a substantive basis is overruled and now, in certain circumstances, prior inconsistent statements can be adduced as evidence of the truth of their contents even if not adopted by the witness. Speaking on behalf of the majority of the Court, Lamer C.J.C. held that in order to be admissible for this substantive purpose, the party tendering the statement must, as a general rule, demonstrate on a balance of probabilities: 1. That the statement was made under oath or solemn affinnation. 2. That the witness was warned or cautioned prior to making the statement regarding possible charges with penal consequences for giving false information. 3. That the statement was videotaped in its entirety; and 4. That the opposing party has had a full opportunity to cross-examine the witness regarding the statement. (The concurring minority judgement of Cory J. differed primarily in that it would have broadened the circumstances in which such statements are admissible.) As well, the majority judgement of the Supreme Court of Canada recognized that in exceptional circumstances, sufficient or acceptable "substitutes" for these requirements may adequately guarantee the necessary "reliability" of the evidence to permit the trial judge to still admit the evidence for the truth of its contents.

5 5 RELIABILITY The creation of this new "principled" approach to the hearsay rule has been marked by a judicial search for substitute indices of reliability - a kind of an acceptable level of circumstances of a guarantee of troth. NECESSITY In the hearsay situations in Khan and Smith, (supra) there was little difficulty in satisfying the "necessity" requirement: In Khan, the young child could not be sworn, and in Smith, the declarant was dead. But with prior inconsistent statements, in every case the declarant is available at trial. It is the prior statement that is unavailable because of the recantation. Although in K.G.B. the Supreme Court of Canada recognized this as a vexing problem, the Court called for flexibility in satisfying the "necessity" requirement with Lamer C.J.C. stating in the decision at p. 295:....it is important to remember that the necessity criterion must be given a flexible definition, capable of encompassing diverse situations: Smith, at p In fact in "inconsistent prior statement" situations, the Chief Justice seems to suggest that the requirement will, on most occasions, be satisfied where he states at p.296:...it is patent that we cannot expect to get evidence of the same value from the recant witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement and thus the relevant evidence "hostage". The different "value" of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both

6 6 statements in light of the witness's explanation of the change. But it remains that the determination of necessity in the circumstances is a question of law to be decided by the trial Judge. MENU FOR RELIANCE The court set out in a preliminary way a general sense of the "menu" which might suffice the reliability requirement. 1. The Oath While its importance has diminished in modem times, the majority of the Supreme Court of Canada held that it does contribute to a preference for admissibility. ( The concurring judgement of Justice Cory severely discounts the oath's reliability guarantee. In court the witness under oath recants the earlier statement under oath - how much does an oath really matter to the witness? ) Lamer C.J.C. did recognize the changing significance of the oath in today's society but held at p. 289:... there remain compelling reasons to prefer statements made under oath, solemn affirmation or solemn declaration. While the oath will not motivate all witnesses to tell the truth (as indicated by the witnesses' peijury in this case), its administration may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation. The Supreme Court of Canada did allow that there might be situations which may substitute for an oath equivalent impressing upon the person the importance of

7 7 telling the truth and providing a high degree of reliability. The Chief Justice did not elaborate on these situations preferring instead leave it to the discretion of the trial Judge in each case to decide whether the circumstances meet the reliability requirements. 2. Presence The substitute or functional equivalent must be one which duplicates the experience of observing the witness in the court room. Examples: Videotaping of Statement Viewing by independent third party (e.g. J.P. or witness's lawyer) observing physical and emotional conditions of person, solemnity of interview, environment, etc. 3. Cross-Examination Critics opposed to expansion of the orthodox rule cited the lack of contemporaneous cross-examination with the utterance of the earlier statement. However, Chief Justice Lamer stated at p. 293:...it is the most easily remedied by the opportunity to cross-examine at trial. This is a feature of prior inconsistent statements that conclusively distinguishes them from other forms of hearsay. As the United States Supreme Court noted in California v. Green, supra, at p. l59:... the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the det(.'ildant is assured of full and em.'ctive cross-examination at the time of trial. The most successful examination at the timc the prior statement was made could hardly hope to accomplish more than has already bl...'cn accomplished by the fact that the witness is now telling a ditlcrent, inconsistl.'ilt story, and -- in this case -- one that is favorable to the detendant.

8 8 THE K.G.B. VOIR DIRE There is no automatic entitlement for a party to tender a prior inconsistent statement as proof of the truth of its contents. The party wishing to advance the prior inconsistent statement for substantive use by the trier of fact must enter a voir dire and a series of steps toward a ruling by the trial judge on whether this statement may be considered for that substantive purpose. The Chief Justice in K.G.B. described this as a two-stage process in which the applicant first fully invokes the provisions of s. 9 of the Canada Evidence Act and goes through the sequential steps required therein. The "moving" party must then express an intention as to the desired use for the prior inconsistent statement. If the applicant's only purpose is to impeach the credibility of the witness, the trial judge will restrict the ruling under the section and will not consider the refonned rule. However, if the stated purpose is for the trier of fact to use the statement as substantive evidence of the truth of its contents, the trial judge proceeds into the second stage K.G.B. voir dire in accordance with the following steps: 1. Whether there is evidence on a balance of probabilities of indicia of reliability from the "preferred or deemed menu" drawn by the Supreme Court of Canada regarding the statement. 2. If some or all of the "preferred or deemed menu" are not present, whether there is evidence on a balance of probabilities of acceptable substitute factors satisfying the requirement of reliability and

9 9 trustworthiness of the statement. If the criteria are met and the Court is satisfied that it meets the K.G.B. requirements of "necessity" and "reliability", the trial judge may allow the trier of fact to consider the statement for the truth of its contents provided it is not otherwise inadmissible. Furthermore, if parts of the statement are prejudicial and of little probative value, the trial judge has discretion to edit the statement before it is considered by the trier of fact. Finally, after it is admitted into evidence, it is for the trier offact to determine whether what was said in the prior inconsistent statement was true and what, if any, weight to attach to it.