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Read the Law on Prior Consistent Statements





General Rule


Prior consistent statements are generally inadmissible because they lack probative value, are hearsay, are often self-serving, repition does not make a statement more likely to be true, and they are not corroborative because they lack independence: R v Rhayel, 2015 ONCA 377; R v Luceno, 2015 ONCA 759; R v Warren, 2016 ONCA 104 at para 10; R v Bo Zhou, 2017 ONCA 90 at paras 34-50



The Use to be Made of PCS


When Not Adopted


Prior consistent statements may assist a jury in assessing the reliability of a complainant’s testimony, flowing not from the consistency of the statements but from the manner in which the prior statements were revealed (i.e., circumstantial evidence of reliability): R v LO, 2015 ONCA 394

Prior consistent statements may be relevant to reliability on the basis of the consistencies between the statements where the defence is alleging that the declarant is unreliable based on alleged inconsistencies (i.e., to rebut allegations of inconsistency): R v LO, 2015 ONCA 394; R v. Perkins, 2015 ONCA 521

When evidence is admitted pursuant to section 715.1, the jury is entitled to look at in/consistencies between the video statement and the in court testimony to assess the witnesses credibility and reliability: R v LO, 2015 ONCA 394. It is generally appropriate for a TJ to give a limiting instruction on the use of PCS: R v AMV, 2015 ONCA 457 at para 16



When Adopted


When a witness adopts a prior inconsistent statement, the whole statement is goes in for its truth and is to be considered in assessing the witness’s credibility. Jurors may decide what inconsistencies exist, how they impact on her credibility, and what weight to give to any of those statements: R v. Modeste



Limiting Instructions


It is generally appropriate/required for a TJ to give a limiting instruction on the use of PCS: R v AMV, 2015 ONCA 457 at para 16; R v Warren, 2016 ONCA 104 at para 11. This instruction should indicate that the prior complaints are not admitted for the truth of their contents and that the jury is to consider only the fact that the complainants were made to assist them in understanding what occurred and why:  Warren at para 11.

A limiting instruction is particularly necessary where the complainant's prior statements could serve to shore up the complainant's trial evidence about offence that is otherwise questionable: Warren at para 30

However, limiting instructions on the use of prior consistent statements are not always necessary. The isuse must be assessed in the context of the particular case and on a functional basis: R v AMV, 2015 ONCA 457 at para 16

For example, a limiting instruction may be confusing where "the defence was relying on the prior statement to support its theory," "where it was clear to the jury that the prior statement was not offered as proof of the underlying facts, or where the concern about self-corroboration is simply not present":  Warren at para 12.

A limiting instruction is not required where the truth of the prior consistent statements becomes relevant - e.g., where defence counsel is arguing that the complainant came up with a quick lie to exculpate himself: Warren. 

To succeed on appeal, the appellant must establish that a jury instruction concerning containing a limiting instruction should have been given and that its omission amounted to legal error: R v Warren, 2016 ONCA 104 at para 9 



The Edgar Exception


Case involving the admissibility of prior consistent statements under the Edgar exception – i.e., when first confronted with an accusation or a crime: R v Liard, 2015 ONCA 414




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