Chapter 6: Traditional Exceptions to Hearsay

Which hearsay exception is thought to be the most important and why

admissions of a party

the most common one used

Admissions of a party means

anything said by a party by way of word or conduct that the other party wishes to introduce against that party

The party in admissions of a party refers to what type of party

someone who is party to the case

General rule of admission of a party

may be admitted into evidence and used against them

Why is there little concern over reliability with admissions made by a party

because it is within that party’s control to answer for the statement on cross examination

Two categories of admissions of a party

formal

informal

Formal admission

party to the proceeding admits certain facts are true

Formal rules of admission under Rules of civil Procedure (rule 51): What form

Form 51A request to admit

Form 51A Request to admit is asking

the other party to admit the truth of a fact or the contents of the document

How long does someone served with Form 51A have to respond and on what form

20 days upon service

51B

If a party is served with Form 51A request to admit and does not respond w/in 20 days, what happens?

they are deemed to admit the truth of the fact or the authenticity of the document (only for the purposes of the proceeding)

Consequences for failing to admit certain facts are true or documents are authentic

the court may take this into account when exercising its discretion respecting costs

For criminal offences, the process for formal admission is found where

s 655 of the CCC

s 655 of the CCC says

where an accused is on trial for an indictable offence, counsel may admit any fact alleged against him for the purpose of dispensing with the proof thereof

Informal admission

statement mad by a party outside of court that can be admitted against them by an opposing party for the truth of its contents

Informal admissions are typically not part of the trial process but arise from

relations between the parties

R v Bryan facts

Bryan filled out a declaration of guarantor on a passport application

R v Bryan: Bryan filling out the guarantor section was considered to be - because it -

an informal admission

arose form the relationship between the parties

Informal admissions can ONLY be used against who?

the person who made the statement

Informal admissions ONLY apply when the statement is made to a person who

is NOT in authority

Formal vs Informal: which ones are more likely to raise hearsay issues

informal

Vicarious admission

admission made by an authorized speaker for a party

Criteria for determining whether vicarious admissions are admissible

must be proof the speaker was an agent or employee of the party at the time the statement was made

speaker must have been authorized to speak on the topic

statement must have been to a third party

Admission by action

meaning or intention conveyed by an act or gesture

In the criminal context, admission by conduct is known as

after the fact conduct

In the civil context admission by action is known as

subsequent repairs

Admissions by silence

failure to make a denial may be admitted as an implied admission if the admission manifestly implies an admission

Criteria for admissions

statement or act by an opposing party the other side wishes to use in evidence against them

need not be knowingly made against interest

any statement made by an agent/employee authorized to speak on behalf of the other party

may be made by conduct

General rule for admissions in conspiracies

used only against the party who made it

Exception to the general rule of admissions in conspiracies

when the parties are involved in a common design

Conspiracies in a civil setting can be exemplified by

partnerships

Why is there a unique exception to the hearsay rule when conspiracies are involved

because of the intense secrecy involved in conspiracies

Conspiracy

common design or plan by two or more persons to commit a criminal act or omission

Co-conspirator exception

rule allowing evidence against one member of a conspiracy as evidence against all other members

R v Mapara: facts

accused was involved with 3 other people in conspiring to and then killing someone in a parking lot

R v Mapara: SCC said

statements made by a person engaged in an unlawful conspiracy are admissible against everyone acting together if made while the conspiracy was ongoing and towards accomplishing the common goal

To meet the hearsay exception, conspiracy admissions must be made

in furtherance of the conspiracy

Test for proof in a conspiracy

Carter tets

3 stages of proof in a conspiracy

crown establishes that a conspiracy existed

crown establishes who the members are

fact finder considers whether those conspirators are guilty beyond a reasonable doubt

Hearsay statements made by alleged co-conspirators are said to be - admissible

conditionally admissible

Conditions attached to co-conspirator statemetns

can only consider them at steps one and 3 of the Carter test

R v Devloo: facts

Drug trafficking conspiracy

accused wanted to use the conspirator exception to prove he was not involved

R v Devloo: what hearsay exception was involved

co-conspirator

R v Devloo: why was the attempted application of the co-conspirator exception unique

usually it is used by the Crown, this was the first time an accused was attempting to use it

R v Devloo: Court of appeal decided

can’t claim to be a co-conspirator and then use the exception

agency had ended and this rule must be used in furtherance of a conspiracy

Declarations against interest

statement made by a declarant that is against the parties own interests

Two categories of declarations against interests

against pecuniary/proprietary interests

against penal intersts

Declarations against pecuniary or proprietary interests

involves declarations against financial interests or ownership matters

Declarations against pecuniary interests are allowed because

they are considered sufficiently reliable that they should be admitted

Rationale for declarations against interests

why would someone make a statement against their own interests if it wasn’t true

Common law test for declarations against financial matters

Demeter test

Demeter v R: facts

accused allegedly hired someone to kill his wife

sought to have evidence that a person not connected with him had confessed

confessor was an escaped convict serving a life sentence

confessor made the statement to a good friend and then died

Demeter: SCC said

statement of the convict was not against his penal interests

Demeter test for proprietary interests

person making the statement must be unavailable to testify

statement must be against the person’s interest

person making the statement must have had personal knowledge of the facts

economic prejudice must be immediate

Case that narrowed the use of declarations against penal interests

R v Lucier

R v Lucier: facts

charged with arson

friend was severely burned and made statements at the hospital implicating the accused then dies

Crown wants to introduce those statements

R v Lucier: SCC

declarations against penal interests exceptions can only apply where the statement is being used for EXCULPATORY purposes

R v Lucier: the use of declarations against penal interests is asymmetrical and can only be used by the -

defence

Demeter test for penal interests

must be dead, insane, out of the jurisdiction, too ill to testify

must believe they are vulnerable to criminal prosecution as a result

vulnerability to prosecution cannot be remote

is there any other evidence supporting the statement and is there a connection between the person and the accused

totality of the circumstances

Dying declaration

statement made by a person who is certain they are about to die

Dying declarations can only be used in the - context

criminal

Res gestae is a statement

made in an excited state or expressing an existing condition

Res gestae transates to

the thing is done

Res gestae: 2 main categories

excited utterance

statement of present impression

Excited utterance aka

spontaneous utterance

Excited utterance

statement made while speaker’s mind is still dominated by a startling event

2 cases dealing with excited utterances

R v Leland

R v Andrews

R v Leland: facts

person had just been in a fight called out “she stabbed me”

R v Leland decided

statement was not sufficiently immediate

R v Andrews: fact

Armed robbers robbed A Morrow disguised in sheets

the sheet fell off during the robbery

Morrow made statement about attacker to the ambulance attendant

Morrow then died

R v Andrews decided

the statement WAS sufficiently immediate

Res gestae: factors that must be considered

can the possibility of distortion be disregarded

was the event so dramatic as to dominate the thoughts

must be so closely associated with the event that it can be stated mind of the person was still dominated

is there anything in the circumstances to imply any special reason for concoction

are there any special circumstances that increase the potential for error

Res gestae: hallmark of excited utterances

startling events

dominates the mind

mind will not allow concoction of story

Res gestae: statement of present impression

statement regarding a person’s perception of their immediate physical surroundings or actions

2 subcategories of statement of present impression

regarding present physical condition

regarding present mental condition

Statement of present impression

speaker reporting physical sensations that they are experiencing as they happen

Statement regarding present mental condition

statements of emotion, intention, or planning

Case that set out the Res Gestae factors

R v Andrews

Case that placed limitations on statement of intention

R v Starr

R v Starr said

when there are circumstances of suspicion, the statement will not be admitted pursuant to mental condition, specifically intention of planning, exception

R v Starr: facts

deceased male victim had said to his girlfriend he couldn’t hang out with her because he was going to commit an insurance scam with Mr. Starr

Starr is later accused of murdering the deceased

Crown wanted to admit the deceased’s statements to show he intended to floow through to go hang out with Starr

R v Starr: problem(s)

statement was made to his girlfriend

evidence to show he had lied in the past about where he was going b/c he was seeing other women

R v Starr: SCC said

these are circumstances of suspicion surrounding the statement and thus there is a question of its reliability and cannot be admitted

R v Speirs: facts

victim was being robbed and called 911

while on the call, he told operators details of the invasion

Spiers subsequently died

R v Spiers: what exception(s) were involved

spontaneous utterances

principled

R v Spiers: what basis did the court find his statements met the exception

he had been hit in the head and was sufficiently dominated by the event there was a guarantee of reliability

R v Spiers: what did judge say in relation to cross examination

statements were so reliable that cross examination would not add much

3 safeguards of statements/evidence

made under oath

being able to assess demeanour

available for cross examination

(oath, demeanour, cross)

Business record

record made in the ordinary course of business by an individual performing the duties of employment who has no motive to fabricate

Common Law rule for business record was widened by the case of

Ares v Renner

Ares v Renner was a - case

medical negligence

Criteria for business records to be admitted under common law

made in ordinary course of business

made by person whose duty was to keep such records

person made the records from personal knowledge

made contemporaneously

person had no motive to misrepresent them

Prior testimony common law rule set out in what case

Walkerton

Walkerton test for prior testimony to be admissible

witness is unavailable

material issues and the parties are substantially the same in both proceedings

opposite party had the opportunity to cross examine

Identification testimony protocol at trial

officer will testify about the identification process

photo lineup will be presented as an exhibit

officer will testify about who the witness identified

Under what circumstances does identification raise hearsay issue

if the witness can’t remember the identification

What is the requirement for identification to be admitted

identification had to have been done under reliable circumstances

Oral histories of Indigenous people are used for what matters

land claims