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| Patrick Ducharme |
The co-conspirators’ exception to the hearsay rule is, from a defence lawyer’s perspective, the legal version of an improvised explosive device. It is like a cluster of improvised explosive devices: extremely diverse, difficult to defend against and intended to inflict a great deal of pain in the form of significant volumes of otherwise inadmissible evidence heaped upon the accused and awaiting his explanation. It places the accused in a difficult position. Evidence is presented that is not challenged by cross-examination, the most effective means of testing credibility and reliability. It may be false or contrived or delivered for reasons best known to the declarant or actor, but in their absence. Nevertheless, it begs a response. And, in that response, the accused is placed in the unenviable position of answering “no win” questions premised upon the alleged statements and conduct of absentee witnesses. Sometimes no answers will suffice to remove the prejudice created by the questions.
The co-conspirators’ exception to the hearsay rule is, from the trial prosecutor’s perspective, a highly effective bomb, the ingredients of which are sometimes as inexpensive as a paid informant, or a person as guilty of the alleged crime as the prosecutor contends the accused to be, and, “paid” by the prosecutor’s decision to make the declarant or actor a Crown witness, not an accused.
There is no downside to this evidence for the prosecution, because this bomb detonates equally upon the guilty and the innocent and avoids troublesome challenges such as cross-examination. This bomb may be detonated remotely, as in not requiring the actual attendance of the actor or declarant. And, best of all for the prosecutor, benefits by a three-step process that places all the evidence before the trier of fact even before the jury decides whether the accused is, in fact, a member of the conspiracy.
This analogy to a roadside bomb may be disproportionate to the Rule’s actual impact but I doubt Sir Walter Raleigh would think so. In fact, he might be shocked at how little progress we have made since his unhappy demise.
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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