Chapter 5: Hearsay

Hearsay

statement, originally made out of court, that is repested in court for the truth of its contents

What is the fundamental rule of hearsay?

Inadmissible unless it meets a specific exception that permits it to be admitted

In order to come to conclusions of fact, the fact-finder must

weigh evidence presented to determine what happened

What is the questions for the hearsay test?

• is it an out of court statement?

• is it being tendered for the truth of its contents?

• is the statement maker available for cross-examination?

What are we worried about with hearsay evidence?

reliability; hearsay statements aren’t made under oath and there’s no chance for the statement maker to have their demeanour assessed by trier of fact

When referring to the unavailability of a statement maker (for hearsay test), “unavailable” refers to

• cant be physically present bc theyre dead

• recant

• mentally incapacitated

• too psychologically frail to cross-examine

If the answers to the forst two hearsay questions are “yes” and the third one “no”, then

it IS hearsay and inadmissible unless it meets an exception

T/F: hearsay can be made orally, in writing, or be implied

True, it can be

If the answer to the first hearsay question is “yes” but the second is “no”, the statement (is/isn’t) hearsay, and it may be admitted based on

• isn’t

• the threshold test of materiality and relevance

Cop Mopp searched Bop for drugs bc Hopp told them Bop had them. Is this statement hearsay/admissible for its truth?

No, because the statement isn’t being tendered for the truth of its contents but instead is being used to show the basis that Cop Mopp had reason to search

Laymen Claymen was backing out of his driveway and passenger Cassenger got out and said “it is clear.” Is this statement hearsay?

No, because the statement isn’t going to be tendered for the truth of its contents (tht it was or wasn’t clear) but will be used to show that Laymen Claymen had reasonble grounds to believe it was safe/to act

Out of court statements aren’t hearsay if they’re going to be used to

show why a person chose to act (shows they acted on a statement they thought was true, not tht the statement was actually true)

What is the leading case on the admission of out-of-court statements to show state of mind?

Subramaniam v The Director of Public Prosecutions

Subramaniam v Public Prosecutor: Facts

Accused charged w possession of ammo during terrorist actions. For defence, accused raised issue of duress and told authorities he’d been taken prisoner by terrorists and they forced him to act. Trial judge said hearsay so accused couldn’t prove state of mind and was convicted and sentenced to death. Appeal said his statement wasn’t for truth but to show he acted on what he thought was truth.

Subramaniam v Public Prosecutor: ratio

if statement isn’t being admitted to prove it was true but to show that the person who heard it thought it to be true, the statement is admissible

Express hearsay statements

a direct, clear statement of fact

Implied hearsay statements

assertion by gesture/conduct that intends to communicate a message by that action/conduct

“Bob told me Cobb killed Job” is an example of a

express hearsay statement

“Cop Mopp asked Bop who killed Hopp, and Bop pointed to Wop” is an example of an

implied hearsay statement

Express/Implied hearsay statements (are/aren’t) treated as hearsay and are (inadmissible/admissible) unless it ___

• are

• inadmissible

• meets an exception

What three safeguards to reliability are missing with hearsay evidence?

• made under oath

• demeanor assessable

• can cross-examine

Case where the subcategories of hearsay statements were removed

R v Baldree

R v Baldree: Facts

Cops doing drug raid in accused’s home when the phone rang. Cop answered and it was a customer of the accused who wanted to buy drugs. Cops tried having the caller’s statement admitted to imply accused was a drug dealer (tho made no attempt to find the customer) even tho the caller never intended to communicate w the cops. While case law at the time would’ve permitted the statement, SCC said nah and made distinction btwn statements intended to communicate a msg and statements that didnt

R v Baldree: ratio

distinction between statements that intend to communicate certain info, and statements that don’t — hearsay subcategories where therefore removed