Out of Court Statements of Person Charged (Joint Trial)

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

7.3 Out of Court Statements of Person Charged (Joint Trial)

Note[30]

(Last revised March 2011)

[1] There is more than one person on trial, and there is a special rule about statements made by one of those persons outside the courtroom. You have just heard (NOW)’s testimony that (NOA1), said something. Whatever (NOA1) said, it cannot be used as evidence in reaching your verdict with respect to (NOA2), even if it describes something that (NOA2) allegedly said or did.

[30] Trial judges should identify the witness who gives evidence of an utterance or statement of one accused that is not admissible in relation to any other. The instruction should be given in joint trials at the time that evidence of the utterance or statement is introduced. The instruction may be repeated for later witnesses or jurors may be reminded that the earlier instruction still applies.

This instruction requires modification or expansion where there is evidence upon which the jury could find adoption by an accused other than its maker. See, for example, R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525, 538 (Ont. C.A.), per Martin J.A.

This instruction also requires modification or expansion where there is evidence upon which the jury could find that the statement was made in furtherance of a common unlawful purpose: see Mid-Trial 7.25.