Salvaged Memories & Sworn Liars – KGB statements and other Hearsay

Henry Waldock
Last updated: 2014-10-25

The history of our race, and each individual's experience, are sown thick with evidence that a truth is not hard to kill and that a lie told well is immortal.

– Mark Twain

"People who know little are usually great talkers, while men who know much say little."
- Jean Jacques Rousseau

Principles

Courts don't accept the hearsay as evidence unless it is necessary (because testimony is unavailable) and reliable.

Some witnesses may die or forget their evidence before trial.

When taking statements from very young witnesses, and witnesses in fragile health, do your best to create a situation in which the whole truth will come out.  Videotape it, and document how the interview was set up, so that the court will see how the circumstances encouraged the witness to speak the truth, and admit the evidence even in the absence of the witness.

Other witnesses have a tenuous commitment to the truth.  Some may lie at the beginning of an investigation, but eventually tell some truth.  Others may start with the truth, and recant later.  Taking a sworn statement cuts two ways. If the witness tells the truth, the prosecutor may use the statement when the witness recants; but if the witness lies to you under oath, the defence may convince the court to rely upon the false statement at trial.  Obtaining a sworn videotaped statement from such a witness should be undertaken only when you expect the witness will tell the truth.  Investigate and document what influences and motives might affect the witness.  Assess what you know before administering the oath.

Some factors courts found helpful when deciding whether to admit hearsay included:

Not all of these are required.  Indeed, in some cases, one or another may be counterproductive or unnecessary. 

Investigate the circumstances of the taking of the statement:

Investigate every assertion in the statement for corroboration.

When taking a statement avoid:

Child Witnesses

Amendments which came into force in January 2006 changed s.715.1 to permit admission of videotaped evidence of child witnesses, regardless whether the offence was a sexual one or not. It also made videotaped evidence admissible in a similar way for other vulnerable witnesses. s.715.2.  A "child" is a person under 18.

If you are worried that a child witness may later tell lies, you might want to go through the KGB procedure.  Beware.  Kids between 14 and 18 can swear or affirm.  But children under 14 must promise to tell the truth.  (See the Canada Evidence Act, s.16 and 16.1.)

If you're dealing with a mentally handicapped person, or a very young witness, you might want to establish that he or she understands what truth is.

"If I said I have green hair, would that be the truth or a lie?"
"It's very important today to tell me the truth about Uncle Billy.  Can you do that?"
"Do you promise to tell me the truth today?"

Old & Fragile Witnesses

All people eventually die. Age and fragility generally lead more quickly to death.  Unless you take the statements of old or fragile people in a way that ensures their reliability, death may destroy their evidence.

Some old people lose their wits. Unless you assess their intellectual abilities at the time you take their statement, the judge may not trust what they say.

Therefore, take sworn statements from old witnesses, and either arrange for psychological assessment, or find out what questions and observations to make during your interview to determine how "with it" your witness is.

Accomplices

When caught in an offence, many people will blame others.  But once their own jeopardy passes, accomplices tend to avoid inculpating each other.  For this reason, the statement of one accomplice against another suffers from a lack of credibility.

After a failed drug deal, a youth named D.S. shot and killed Andrew Freake.  The youth pleaded guilty to second-degree murder, but explained that Mr Youvarajah, 2013 SCC 41 told him in advance to do it, and gave him the gun.  On this version, they committed first-degree murder.  At Mr Youvarajah's trial, D.S. told a very different story, in which he took full responsibility for the killing.  The prosecution tried to tender the version D.S. accepted at his sentencing.  The court rejected this evidence because lacked reliability.

Not all accomplice's admissions are too unreliable to use as evidence.  Mr Kanagalingam, 2014 ONCA 727 and his accomplices faced charges for a sophisticated ATM fraud.  When the accomplices pleaded guilty, the Crown required them to adopt their admissions as true, on oath.  At Kanagalingam's trial, the accomplices gave new versions which protected him from liability.  Because of the additional indicia of reliability, the court found that it could accept these statements.

Therefore, police should move very carefully when making deals with accomplices.  Protect every promise of lenience with requirements that the accomplice tell the whole truth about the event you are investigating.  For example, see the B.C. Crown Counsel's policy on immunity.

Defence Can Use it Too

The principled hearsay rule is a general rule of evidence.  Defence can use it too.  In Kociuk, 2009 MBQB 162 (not published), the accused was charged with murder.  A dying prisoner confessed to the murder.  After that prisoner died, defence persuaded the court to admit the dying prisoner's confession, to show that someone else committed the murder.

Cases

A 3 year old child complained to her mother that Dr Khan (SCC 1990) said "open your mouth". And do you know what? He put his birdie in my mouth, shook it and peed in my mouth. The child couldn’t testify at trial, and so Dr Khan was acquitted. The Supreme Court of Canada said there could be a new trial, based on the child’s remarks because they were reasonably reliable (accompanied as they were by semen on her clothes) and necessary for the court to get to the truth.

Mr F.J.U.’s (SCC 1995) daughter complained to the police about a variety of sexual acts that he had committed. The police asked him about them, and he volunteered the same list. At trial, both recanted. The Supreme Court of Canada permitted the Crown to rely upon the girl’s original statement because of the strange coincidence that she and he could list the same acts independently.

A youth named K.G.B. (1993 SCC) and three of his friends were involved in a fight with two men. In the course of the fight, one of the youths pulled a knife and stabbed one of the men in the chest and killed him. The four youths immediately fled the scene. About two weeks later, the accused's friends were interviewed separately by the police. Each was accompanied by a parent and in one case by a lawyer and each was advised of his right to counsel. It was also made clear that they were under no obligation to answer the questions and that they were not "at this time" charged with any offence. With the youths' consent the interviews were videotaped. In their statements, they told the police that the accused had made statements to them in which he acknowledged that he thought he had caused the death of the victim by the use of a knife. The accused was charged with second degree murder and tried in Youth Court. At trial, the three youths recanted their earlier statements and, during the Crown's cross-examination pursuant to s. 9 of the Canada Evidence Act, they stated they had lied to the police to exculpate themselves from possible involvement. Although the trial judge had no doubt that the recantations were false, the witnesses' prior inconsistent statements could not be tendered as proof that the accused actually made the admissions. Under the traditional common law position, they could only be used to impeach the witnesses' credibility. In the absence of other sufficient identification evidence, the trial judge acquitted the accused and the Court of Appeal upheld the acquittal. Prior to the hearing in this Court, the three witnesses pleaded guilty to perjury as a result of their testimony at trial. In this appeal, the Crown asks this Court to reconsider the common law rule which limits the use of prior inconsistent statements to impeaching the credibility of the witness.

Held: the statements of the buddies might be admissible for the truth of them. At a new trial, the trial judge must consider:

What indicia of reliability are there around the taking of the statement? A warning against lies, on pain of prosecution; oath, solemn affirmation, or solemn declaration, and videotape record, or sufficient substitutes.

Was the statement made voluntarily if to a person in authority?

What are the circumstances of the making of the statement?

Pearson (1994 BCCA) sexually assaulted a mentally handicapped 18-year old. The victim made crucial remarks to his mother shortly after the assault which identified the offender. At trial, he couldn’t remember much, but his remarks to his mother were admitted for the truth of what he said.

Mr Trieu (2005 Ont CA) chose the wrong fellows with whom to commit a robbery.  They both confessed (naming him) and they pleaded guilty.  One was a youth and the other an adult.  At Trieu's trial, they both admitted participation in the robbery, but denied that Trieu was the third robber.  The Crown tendered their videotaped confessions, which the trial judge admitted.  On appeal, the majority found that the videotaping, combined with the accomplices' guilty pleas helped make the statements admissible.  But the judges disagreed between themselves whether the oath should have been applied to the statement of the youth.  Judge Rosenburg said that the YCJA warning only warned the youth about the consequences of telling the truth, but did not warn him about the dangers of lying.  The other judges felt that the oath was not as important as other indicia of reliability.  If there's any lesson to draw from this disagreement, it might be the middle ground: the public mischief warning may be more useful than the oath.

Mr Khelawon (2006 SCC 57) managed a retirement home.  A couple of weeks after he laid off the cook, one of the residents complained to the cook that Khelawon assaulted him.  The complainant moved in with the cook, and after a few days the cook reported the incident to the police, and gave them names of other possible complainants.  Police investigated and took oral and videotaped statements from 5 residents who complained of assaults.  Deteriorating health prevented all the witnesses from testifying at trial.  Their deteriorating mental capacities raised doubts about the reliability of their statements.

On the other hand, after Ms Taylor 2012 ONCA 809 stole the life savings of an 87-year-old woman, police took a K.G.B. statement from the victim, and obtained a psychological assessment of her which said she was lucid. Even though she died before trial, her statement proved that she did not give the money to the thief.

In attempting to solve the rape-murder of an innocent young woman, a police officer repeatedly interrogated a potential witness improperly.  He suggested recollections to her, he invited her to speculate and imagine recollections.  The witness was a drug addict at the time of the murder, and at first, she claimed to have little memory of the event.  By the time the officer was done with her, she had a story.  Perhaps because of the media frenzy over the case, she discussed her story with acquaintances, who were prepared to give it some support with claimed recollections.  Her story was completely incompatible with the fact that Mr Post's 2007 BCCA 123 DNA was in the body of the victim.   At trial, the witness claimed to have little or no recollection.  Defence wanted to present recordings of her interviews, but the judge excluded it because it was unreliable. The judge condemned the officer's interview technique.   I guess there are two lessons to be learned here: (1) Beware of making suggestions to witnesses: make sure that your interviewing doesn't change their recollections; (2) Recording the interviews helps later review.

Ms Goodstoney, 2007 ABCA 88 persuaded a friend to stab an enemy.  The enemy died.  During the police investigation, the police persuaded the friend to tell all, and she did.  In a sworn videotaped statement.  At the preliminary hearing, the friend recanted.  At the trial, the friend refused to be sworn.  Were the friend's hearsay remarks admissible?  Defence complained that the administration of the oath was done without a real Bible.  The trial judge agreed the police made an error, but found this wasn't fatal.  What convinced the judge to admit the statement was that evidence demonstrated that the friend had no motive to lie about Ms Goodstoney's involvement.

The little point in this case is: follow the proper procedure for taking oaths, including having a Bible handy.

The big point is: investigate the motives of the crucial witnesses, particularly where they may recant.

Mr T.R.'s daughter (2007 ONCA 37) gave a videotaped statement accusing him of raping her repeatedly.  At trial she recanted completely.  Despite any coroborrating evidence, the trial judge admitted the video.  The Court of Appeal found that the trial judge was correct to do so.  The complainant was present and ready to answer questions at trial.   (The Court of Appeal also overturned Mr T.R.'s conviction because of the contradictory evidence.)

Police arrested Mr Narwal for a kidnapping.  He gave an "off-the-record" statement admitting that he, his brother and Mr Naicker 2007 BCCA 608 were involved.  Mr Narwal was tried separately.  At the trial of the other two, he refused to testify.   The court allowed the police officer to testify what Mr Narwal said because:

On appeal, the defence argued that accomplice evidence is so unreliable that it should not be admitted unless the accomplice testifies, and is cross-examined.  The court declined to add such a requirement to the hearsay rule.

A gang of youths which included S.S. 2008 ONCA 140 committed three robberies in one night.  At trial, two of the victims professed to have no memory of the events.  Crown applied to tender their statements as evidence of what had happened.  The judge found that the witnesses were too frightened to testify.  One of them, however, was willing to answer defence questions about the making of the statement.  The judge observed that the defence never questioned the witness about the robbery itself.  The judge found that the witness, for his own reasons, had decided to cooperate with the defence but not the Crown.  The witness was therefore "unavailable" to the Crown (establishing the "necessity" condition), and "available" to the defence for cross-examination (which helped establish the "reliability" condition).  The court of appeal upheld this finding.

Mr Ellison stabbed a guy in his neighborhood, Mr Blackman, 2008 SCC 37.  Mr Blackman never ratted him out.  Instead, he and his brother tried to shoot Mr Ellison, inflicting a slight injury.  Mr Ellison told his mother the whole sordid story, and said he didn't want to go to the police because Mr Blackman didn't.  (In this neighborhood, there was a "code of silence" - people didn't talk to the cops.)  Somebody shot and killed Mr Ellison.  The Crown had evidence that Mr Blackman did it.  Was the hearsay admissible?  Defence said it didn't prove that Blackman pulled the trigger.  The court said it helped prove motive, and was therefore "necessary".  Defence complained that Ellison might have lied to his mother.  The court found that what he told his mother was pretty disreputable.  It wasn't the kind of "sanitized" version a lying son might give his mom.  The court found the evidence admissible, and upheld the conviction.