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Collusion in Testimony: Reliability Concerns Regarding Truthfulness
Question: What implications arise when witness statements in Canadian courts are nearly identical?
Answer: Witness statements that are remarkably similar can raise questions about their reliability in Canadian courts since R. v. U. (F.J.), [1995] 3 S.C.R. 764 highlights concerns about potential collusion or external influence. While such similarities may indicate truthful testimony, they may also stem from coordinated narratives. Our legal team can help clarify and address these crucial reliability issues—call (519) 253-2000 for a free consultation.
Understanding the Testimony Collusion and Reliability Concerns Arising From Nearly Identical Witness Statements
When two or more people provide statements containing similar, meaning nearly identical, statements within an Affidavit or viva voce testimony, such raises the concern as to whether the statements are a genuine recollection of the facts or whether the statements are a concerted recital due to some form of influence, illicit or otherwise.
The Law
When two or more witnesses provide statements that are nearly identical, such raises concern for whether the statements are based on a factual recollection or whether the statements are provided in a colluded attempt to support and bolster the stories of each witness or whether the statements were influenced in another way. The case of R. v. U. (F.J.), [1995] 3 S.C.R. 764, reviewed these concerns whereas it was said:
40 ... When two statements contain similar assertions of fact, one of the following must be true:
1. The similarity is purely coincidental.
2. The similarity is the result of collusion between the two declarants, before one or both of their statements were made.
3. The second declarant knew of the contents of the first statement, and based his or her statement in whole or in part on this knowledge.
4. The similarity is due to the influence of third parties, such as an interrogator, who affected the contents of one or both of the statements.
5. The similarity occurred because the two declarants were both referring to an actual event -- that is, they were both telling the truth.
The first four explanations are, of course, equally consistent with the similar portions of the statement being true or false. It becomes possible to conclude that the similar portions of the statements are true only when it can be established that none of the first four alternatives are likely, and that the fifth option is thus the only likely explanation. Consequently, striking similarities between two statements will only enhance the likelihood that either of the statements is reliable when there is a basis for rejecting as unlikely all the alternative explanations.
41 In order to eliminate, or at least substantially reduce, the likelihood of a similarity between two statements arising through coincidence, the similar factual assertion must be so striking that it is highly unlikely two people would have independently fabricated it. If the similarities between two statements are not sufficiently striking, comparing them will not provide the circumstantial guarantee of trustworthiness necessary to meet the threshold requirement of reliability since coincidence will not have been ruled out as an explanation. In some cases, the necessary degree of similarity will result from the unique nature of particular factual assertions in both statements. In other situations, while there may not be any points of similarity that are sufficiently striking to render coincidence unlikely when viewed standing alone, it may be that the cumulative combination of similar points renders the overall similarity between the two statements sufficiently distinctive to reject coincidence as a likely explanation.
As above, there are various concerns that arise when witnesses tender evidence statements that are eerily similar and give cause to the court to carefully review whether the reliability of the statements is strengthened or weakened by the multiplicity of witnesses providing statements that appear as too similar.
Conclusion
Witness statements that are identical or highly similar may be an indicator that the facts are accurate or may be an indicator that collusion or some other influence is involved. When witness statements are highly similar, the court will carefully review whether such is from innocent coincidence, accidental influence, or illicit collusion, and what effect should be given to the reliability of the statements.