Background
Four youths were involved in a fight with two men. One youth pulled out a knife and stabbed one of the men, killing him. During the investigation each youth was interviewed on camera in the presence of family or their lawyer. In three of the statements, reference was made to death likely being caused by K.G.B., one of the four youths.
At trial, however, the youths recanted their videotaped statements and claimed they had lied to exculpate themselves. The trial judge followed the orthodox rule for prior inconsistent statements, and only permitted the jury to use the statements to impeach credibility rather than prove a fact. K.G.B. was acquitted and the decision was upheld on appeal.
The issue before the Supreme Court of Canada was whether the recorded statements could be submitted as evidence to the truth of their contents under the principled exception to hearsay.
Reasons of the court
Chief Justice Antonio Lamer, writing for the majority, held that the statements were admissible. He allowed the appeal and ordered a new trial.
The principled exception to hearsay, as outlined in R v Khan and R v Smith , requires that the statement be reliable and necessary. Lamer CJ adopted these two criteria in formulating the test for admitting prior inconsistent statements. First, "if the statement is made under oath, solemn affirmation or solemn declaration following an explicit warning to the witness as to the existence of severe criminal sanctions for the making of a false statement". Second, "if the statement is videotaped in its entirety". Third, "if the opposing party, whether the Crown or the defence, has a full opportunity to cross‑examine the witness at trial respecting the statement".
Lamer CJ also made clear that substitute reliability guarantors could be accepted in place of these strict guidelines, in certain cases.
Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted.
Crawford v. Washington, 541 U.S. 36 (2004), is a landmark United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court held that prior testimonial statements of witnesses who have since become unavailable may not be admitted without cross-examination.
First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.
Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts.
Subramaniam v. Public Prosecutor, Judicial Committee of the Privy Council, 1 W.L.R. 965 (1956), is a leading Privy Council case that defined the scope of the hearsay rule. It was a case heard on appeal from the Supreme Court of the Federation of Malaya.
R v Khan [1990] 2 SCR 531 is a landmark Supreme Court of Canada decision that began a series of major changes to the hearsay rule and the rules regarding the use of children as witnesses in court. In this case, and subsequently in R v Smith (1992), R v B (KG) (1993), R v U (FJ) (1995), R v Starr (2000), and finally, R v Khelawon (2006), the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary.
R v Stinchcombe, [1991] 3 S.C.R. 326 is a landmark Supreme Court of Canada decision on the disclosure of evidence in a trial and is considered by most to be one of the most significant criminal law cases of the decade. The Court found that the Crown had a duty to provide the defence with all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial or not, or whether it helps or hurts the Crown's case. This case put to rest the long-standing issue of whether the Crown could purposely deny the defence evidence that the Crown found would be harmful to their case.
R v Starr [2000] 2 SCR 144 is a leading Supreme Court of Canada decision that re-evaluated several principles of evidence. In particular, they held the "principled approach" hearsay evidence under R v Khan and R v Smith (1992) can be equally used to exclude otherwise admissible hearsay evidence. In addition, the Court examined the judge's charge to the jury on the standard of beyond a reasonable doubt.
R v Béland [1987] 2 S.C.R. 398 is a leading Supreme Court of Canada decision where the Court rejected the use of polygraph results as evidence in court.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The right only applies to criminal prosecutions, not civil cases or other proceedings. Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.
Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies.
The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
R v Khelawon, 2006 SCC 57 is a leading decision by the Supreme Court of Canada on the principled approach to hearsay evidence.
R v Smith, [1992] 2 SCR 915 is a leading decision on hearsay by the Supreme Court of Canada. This decision, along with R v Khan (1990), began what is called the "hearsay revolution", supplementing the traditional categorical approach to hearsay exceptions with a new "principled approach" based on reliability and necessity of testimony.
Prior consistent statements and prior inconsistent statements, in the law of evidence, occur where a witness, testifying at trial, makes a statement that is either consistent or inconsistent, respectively, with a previous statement given at an earlier time such as during a discovery, interview, or interrogation. The examiner can impeach the witness when an inconsistent statement is found, and may conversely bolster the credibility of an impeached witness with a prior consistent statement.
Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66, is a case decided by the Supreme Court of Pennsylvania in 1986 which overruled close to two centuries of decisional law in Pennsylvania and established a common law exception to the rule against hearsay.
Tome v. United States, 513 U.S. 150 (1995), was a case decided by the Supreme Court of the United States that held that under Federal Rules of Evidence Rule 801(d)(1)(B), a prior consistent statement is not hearsay only if the statement was made before the motive to fabricate arose.
R v U (FJ) is a leading case of the Supreme Court of Canada. In the decision the court modified the requirements of admissibility of prior statements. In R v B (KG), the court required that prior statements can only be admitted for the truth of its contents where it was under oath and videotaped. In UFJ, the court permitted a less strict standard. The complainants prior statement was admitted for the truth of its contents without being under oath or videotaped where the statement was corroborated by the accused confession. The enhanced reliability of the corroboration and the opportunity to cross-examine the recanting witness was sufficient to remove much of the dangers associated with prior statements.
R v Henry [2005] 3 S.C.R. 609 is a leading Supreme Court of Canada case on the protection against self-incrimination in section 13 of the Canadian Charter of Rights and Freedoms. The court ruled that the Crown may use the accused's previous voluntarily given testimony to incriminate or impeach credibility in a retrial if the accused again chooses to testify at said retrial. The court further held that no distinction should be drawn between the use of such evidence to incriminate the accused directly or to impeach their credibility. The Court partially restored this distinction in R. v. Nedelcu, 2012 SCC 59.
DPP v McLoughlin, [2009] IESC 65, was an Irish Supreme Court case, which confirmed that when objecting to the granting of bail where alleged witness intimidation is raised, the judge in the application should explicitly address the likelihood, extent, and impact of intimidation. This case specifically raised the issue of hearsay in considering potential witness intimidation and in the context of a bail decision. The decision of Denham J, goes on to state in regards to hearsay that: "The relevance and weight of such evidence is a matter to be determined by the trial judge and that a judge should be careful on the weight he or she places on such evidence". The case also had implications for bail applications because the Supreme Court found that a high case load for the High Court had implications on bail decisions.
