Adoptive and Implied Admissions

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General Principles

A categorical exception to the hearsay rule is where the accused adopts a hearsay statement by words, conduct, action or demeanour.

The exception involves two elements:

1. whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?”
2. whether such an inference should be drawn?

The inference should only be drawn where it is a sufficient “foundation” to so as to reasonably infer that the accused intended to accept “the statement as to make it in whole or in part his own”

A speculative interference based on ambiguous conduct is not sufficient to fit the exception.

A foundation requires at a minimum that::

1. the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond;
2. the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and
3. the probative value of the evidence outweighs its prejudicial effect.

Mere presence of the accused at the time of the statement is not sufficient to prove an adoption of the statement.

Jury Instructions
Instructions to the jury on the issue of whether the accused agreed to the statement should include informing the jury the following:

1. whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true;
2. consider all of the circumstances under which the statement was made
3. “if in their view the accused did not assent [...] to the correctness of the statements made in his presence, these statements would have no evidentiary value [...] and should be entirely disregarded”

Non-Accused

The adoption of out-of-court statements by a witness is most commonly seen during the impeachment process during cross-examination. It is also available when dealing with evidence of prior identification.

Where the witness adopts a prior statement as true then the statement will be incorporated into the witness's evidence at trial.

When "a witness adopts a prior statement as true, the statement becomes part of that witness's evidence at trial and is admissible for its truth" The witness must be able to “attest to the accuracy of the statement based on their present memory of the facts referred to in that statement" The witness must acknowledge that he made the prior statement and that his current memory accords with the contents of the prior statement. The trier fact must determine whether the witness adopts part or all of the statement.

Where a witness acknowledges the statement was made and can vouch for the accuracy of the statement based only on the surrounding circumstances of the recording rather than from memory, adoption cannot be made.