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| Patrick J Ducharme |
Sir Walter Raleigh was tried for treason in 1603. The key prosecution evidence was a sworn confession by Lord Cobham, Raleigh’s alleged co-conspirator. Raleigh testified. He called Cobham’s confession a lie and insisted that Cobham had recanted his confession. He protested the admission of this hearsay. He demanded that Cobham be brought to testify. The court refused and Raleigh was convicted and later executed.
The public outcry against this unproven evidence fuelled the introduction of the hearsay rule instituted in England somewhere between 1675 and 1690.1 Ironically, a conspiracy trial inspired the hearsay rule. I say ironically because our modern day use of the co-conspirators’ exception to the hearsay rule renders the protections afforded by the hearsay rule virtually meaningless, particularly when the case is one tried before a jury.
The rule against hearsay considers out-of-court statements as unproven and unreliable. In contrast, evidence under oath, in court, and subject to cross-examination, provides triple assurance of reliability. Testimony given under oath guarantees the truth under penalty of perjury. Cross-examination permits the exposure of inherent weaknesses such as bias, motive, perception, memory, narration or sincerity. Vive voce testimony also permits personal inspection and assessment of the demeanour and therefore the credibility of a witness. Thus, the defining features of the hearsay rule are: the purpose for which the evidence is presented; and whether or not there has been a meaningful opportunity to cross-examine the declarant under oath.
Under the co-conspirators’ exception, however, the “evidence” of declarants, sometimes available to testify, but not called as witnesses, not available to testify, or available to testify but not compellable to testify (as in the case of a co-accused) is nevertheless admissible. The co-conspirators’ exception to hearsay raises some fundamental uncertainties with reliability because the rule:
1. Implicitly assumes that the accused has authorized others (his alleged co-conspirators) to speak and act on his behalf in furtherance of the conspiracy;
2. Presumptively considers the evidence compliant with the principled approach exception to hearsay. In the absence of evidence raising serious concerns about the necessity or reliability of the declarations or conduct, a voir dire to determine necessity and reliability is generally unnecessary;
3. Applies to any crime alleged to be committed by more than one person, even if the accused are not charged with conspiracy. It assumes that any crime committed by more than one person necessarily involves a conspiracy (or agreement) to commit the crime and therefore all statements by each or any of them are admissible against the other(s).
4. Permits evidence of oral or written declarations or non-verbal conduct to be presented in evidence to prove the truth of the matters asserted or demonstrated sometimes not even requiring the declarant to appear in court under oath or solemn declaration and without the declarant submitting himself or herself to cross examination.
5. Permits extremely prejudicial evidence, and, potentially inadmissible evidence, to be presented to a jury on the conditional basis that the jury will not consider any of it until after they review and consider only the evidence that is directly admissible against each accused and decide, on a balance of probabilities, if he or she is a probable member of the conspiracy.
6. Renders unnecessary the requirement that all members of a conspiracy participate, or intend to participate, as equals in the ultimate commission of the unlawful object. Parties to a conspiracy need not personally commit, or intend to personally commit, the offence that each has agreed is to be committed. An individual “may involve himself in the guilt of a conspiracy by his mere assent to an encouragement of the design, although nothing may have been assigned or intended to be executed by him personally.”
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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