Understanding Recent Fabrication in Sexual Assault Cases

I want to talk to you today about a real pitfall that some defense counsel run into a trap at trial. It’s very important. It’s called the law of recent fabrication, in sexual assault trials, and I’m going to try and explain it with an example. So let’s say there’s a sexual assault victim and the assault, the sexual assault occurred one year ago and she goes to the police 11 months after it. And she complains to police of course, that she was sexually assaulted by your client and the trial is taking place a year later. Now as defence counsel, you have to be very careful during your cross examination. So I’m up on my feet, I’m cross examining this victim. I challenge her credibility and reliability. The last thing I want to necessarily do is say to her, look, this motive to lie just arose the day before you went to the police and you’re just making this up. It’s a recent contrivance you’re recently fabricating. In other words, I don’t use those words, I say you’re lying about this. You made it up the day before because you’re mad at him for breaking up with you or he owed you money or some sort of, you know, motive like this. Whoa, whoa, what does that allow the crown to do? It allows them to call a witness she told the day after the alleged sexual assault or rape that it happened. That’s now a consistent story with hers. Normally, the crown’s not allowed to call that witness but you open the door your mistake of alleging a recent motive now, allows the crown to open the door to call a witness to counter that and that kind of supports your credibility and your client. You’re kind of blown out of the water bit on that theory. So it really backfires. I’ve seen this happen. And it happens a lot in cases where there’s a delay in reporting. Okay, so if you’re going to allege a motive to lie, as defence counsel, and you know, then they made up the story, you better be sure that you’re letting that motive to lie before that person started talking to anyone. Let me put it that way. And I’ll give you an example. So let’s say a person, sexually assaulted, on day one and they call the police on day six. When the you’re cross examining a trial as defence counsel, you want to suggest your motive to lie arose right away. And in other words, before she started talking to people, because if you allege arose after she started talking to people, whoa, timeout, you’re probably your clients probably lost the case, because the crown is going to bring in about five different witnesses. Oh, she told me ABCD which is all consistent with their story which supports your credibility. So that’s a law of recent fabrication. I’ve seen inexperienced defence counsel open the door unwittingly is complete disaster from their clients when that’s done. You have to be very careful. You have to plan out your case. How you’re going to present motives to lie and win. And please if your defence counsel or you know, I remind myself every trial I do, you do not open the door on recent fabrication or your client’s going to lose this case. Thank you for watching our video, we are absolutely committed to bringing you the best possible criminal and DUI educational videos. If you found this video helpful, please like it and subscribe to our YouTube channel. If you’ve been charged with a criminal offence in Ontario and require our services, please click on the link in description below.