REVERSING THE PRESUMPTION

ADMITTING PRIOR INCONSISTENT STATEMENTS FOR THEIR TRUTH

Abstract

The traditional bar against admitting witnesses’ prior inconsistent statements for their truth has been the subject of longstanding criticism. The availability of the declarant for cross-examination at trial, the critique runs, allows the parties to test the statements’ reliability and prevents triers of fact from giving them undue weight. While the Supreme Court of Canada has endorsed this critique and admitted prior inconsistent statements under the principled hearsay exception, such statements are still subject to a presumption of exclusion that can only be rebutted in a voir dire considering multiple doctrinal factors. We argue for the reversal of this presumption based on two insights. First, many common law jurisdictions have discarded the traditional rule and made prior inconsistent statements at least presumptively admissible. Second, our statistical and qualitative analyses of reported Canadian cases show that such statements are admitted far more often than they are excluded, especially when there is a meaningful opportunity to cross-examine the witness. These developments suggest that it is past time for Canada to make prior inconsistent statements presumptively admissible as non-hearsay. This presumption would be rebutted only when meaningful cross-examination is impossible.