Can out of court statements that confirm a witness’s testimony be admitted at trial?

PUBLISHED ON October 15, 2024

The prohibition

Generally, when a witness testifies at trial, any prior consistent statement they may have made is not admissible. What this means is that the judge or jury will not get to hear about it. This is because the fact that someone said the same thing on a prior occasion as what they testified to in court is not of any value in determining whether the witness is being truthful in court. A dishonest witness can tell a lie twice. To admit a prior statement would simply be self-serving, allowing a witness to buttress their current testimony with the prior statement – to say that simply ‘believe me because I said this before.’

When can a prior consistent statement be admitted?

Though prior consistent statements are presumptively inadmissible, there are situations where they are considered by the judge or jury, including:

• When the prior consistent statement was made proximate to the time that an offence was occurring, for example, a 911 call
• For narrative or background purposes – to help the judge understand how and when the witness’s story was initially disclosed
• To afford evidence of the declarant’s state of mind at the time the statement was made
• To show an accused’s reaction upon first being confronted with the allegations
• To rebut an allegation that the witness has recently come up with a fabricated story. When a lawyer suggests that a witness is fabricating evidence, evidence of a prior consistent statement may be admissible to show that the witness has given the same account previously and has not recently fabricated the account
• To show that the witness has previously identified the accused, as an earlier out-of-court identification is often considered more reliable.

Procedure for admitting prior consistent statements

Before a prior consistent statement may be admitted into evidence, the party seeking to introduce it must obtain a ruling on admissibility from the trial judge and must identify “the precise basis upon which it should be received.” Should the prior consistent statement be admitted into evidence, the judge will instruct the jury on what use they can and cannot make of the prior statement.

What is written above provides a brief and general explanation of the law surrounding prior consistent statements. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer like Brian Ross at (416) 658-5855