Alternative Suspect Evidence

This page was last substantively updated or reviewed January 2018. (Rev. # 95847)

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General Principles

Generally, the accused is permitted to adduce evidence tending to establish someone else as the culprit of the offence for the purpose of raising a reasonable doubt of their own responsibility.

When considering alternative suspect evidence (also referred to as third party evidence), it is not for the trier-of-fact to determine if the alternate suspect is the culprit. Only whether the "possible involvement of a third party raises a reasonable doubt" about the guilt of the accused.

AS evidence can only be adduced if there is "significant connection" between the third party and the crime.

Factors

The assessment of admissibility balances probative value against prejudicial effect. The court should consider factors including:

1. The danger the evidence will arouse the jury’s emotions of prejudice, hostility or sympathy;
2. The danger the evidence and any evidence responding to it will unduly distract the jury from the main issue in the case;
3. The likelihood the evidence will consume an undue amount of time;
4. The danger of unfair surprise to the opposing party who could not reasonably anticipate the issue and prepare a response to it; and
5. The danger that the evidence will be presented in such a way that usurps the function of the jury.

Excluding Defence Evidence

The power to exclude defence evidence is "narrower and constrained by the fundamental tenant that an innocent person not be convicted."

Raising the Defence

This type of evidence can only be raised where there is sufficient evidence to connect a third-party to the offence. This will turn on the question of sufficient relevancy and probative value. The alternative suspect must have a sufficient provable connection to the offence and cannot simply be speculative. The evidence cannot simply be evidence of propensity or suggestive of a hypothetical motive. However, a specific propensity to commit a particular offence can be sufficient.

The evidence must nevertheless still comply with regular rules of evidence. This includes the requirement that the evidence be relevant and admissible on the issue of identity and establish "sufficient" connection between the third-party and the offence.

Air of Reality

Before the evidence can be considered, the accused must show that there is an air of reality to the defence of another suspect. There must be a basis upon which a properly instructed jury could acquit.

It is considered essential that the alternative suspect evidence have sufficient connection with the offence as "evidence of opportunity." Merely, providing disposition or motive evidence will not be sufficient to be admissible. As the regular rules dictate, charged offences cannot be used to infer disposition.

Rebuttal Evidence

When raising alternate suspect evidence, the Crown is permitted to present reply evidence that it would not otherwise be allowed to adduce. Where evidence of an alternative suspect is raised, there is a risk that the trier of fact would be left with the wrong impression about the insufficiency of the investigation. Accordingly, the Crown will be permitted to lead evidence on the investigative process that includes hearsay and bad character evidence of the accused.

Form of Evidence

Disposition Evidence

The presentation of alternative suspect evidence of disposition may be established by way of expert disposition evidence or by propensity evidence from a prior criminal record.

Evidence of the accused's prior record and the circumstances surrounding them will only be available in limited circumstances.

Inadequate Police Investigation

Alternate suspect evidence can include evidence that the police inadequately investigated alternate suspects or that they had "tunnel vision" and failed to pursue important lines of inquiry.

This is not a formal defence since there is no obligation or burden on the Crown to prove the police conducted a proper investigation. For this reason the defence cannot engage in speculation by suggesting that if they had investigated the case differently they might have turned upon exclupatory evidence. The trier-of-fact must focus on the quality of evidence not the quality of the investigation.

If the accused is advancing an argument of inadequate police investigation, a voir dire should be held on the admissibility of the evidence. It is best practices that this voir dire be held before the empanelling of a jury. The voir dire should also produce "a clear ruling to define the parameters and limits on this type of evidence and to ensure that the evidence will be led in an orderly manner that is fair to both sides."

Rebuttal Evidence

Where the accused advances evidence of inadequate police investigation, the Crown must be permitted to rebut the allegations. It is for this reason that this type of defence is considered "risky" as it will open the scope of permissible Crown evidence. The Crown may be permitted to include "investigative hearsay" and opinion evidence from police.

Rebuttal evidence must "relate to the aspects of the invetigation the accused has impugned. It cannot be used solely for the purpose of "sullying the accused character."

The judge can also exclude the rebuttal evidence where the rebuttal evidence exceeds its probative valiue.

Prejudicial Effect of Alternate Suspect Evidence

The judges must be cautious that tunnel vision defence may derail the trial by moving it into "blind alleys or introduce side issues that may prove irrelevant to the central issue of guilt or innocence."

See Also

• Alibi