Hearsay and Its Exceptions

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Authors

Authors: Michael Gulycz & Mary Ann Kelly
Source: Adapted From: Rules of Evidence: A Practical Approach, Third Edition
Copyright © 2023 Emond Montgomery Publications. All rights reserved.

Chapter 5: Hearsay

Presentation focuses on Hearsay.
Copyright © 2023 Emond Montgomery Publications. All rights reserved.

Learning Outcomes

After completing this chapter, you should be able to:
- Define hearsay.
- State the fundamental rule about the admissibility of hearsay.
- Understand when an out-of-court statement may be admitted to show state of mind.
- Distinguish between the two types of implied statements and their admissibility.
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Hearsay Definition

Hearsay:
- A statement, originally made out of court, that is repeated in court for the truth of its contents.
- Not admissible evidence unless it meets a specific exception that permits it to be admitted.
- Reliability cannot be tested and examined in court in the same way that first-hand evidence can be tested and examined.
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Ensuring Reliability of Witness Evidence

Person who made the statement is testifying under oath and subject to sanctions or penalties for perjury.
Trier of fact can observe the person making the statement and assess their reliability and truthfulness.
The opposing party has an opportunity to cross-examine the witness and attack their testimony to test its truthfulness.

Test for Hearsay

Is the proposed evidence a statement originally made outside the courtroom?
Is it being submitted in court to show that what was said is true?
Is the maker of the statement available to be cross-examined in the proceeding?

Out-of-Court Statements That Are Not Hearsay

If the statement is not being admitted to prove it was true, it is not hearsay.
May be admitted on basis of relevancy to show:
- What the person who heard the statement thought after hearing it.
- Its effect on the person.
- The state of mind.
Leading case on the admission of statements: Subramaniam v Pubic Prosecutor, [1956] 1 WLR 965 (PC).
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Chapter 6: Traditional Exceptions to the Hearsay Rule

Learning Outcomes

After completing this chapter, you should be able to:
- Identify the traditional exceptions to the hearsay rule.
- Explain the circumstances in which traditional exceptions to the hearsay rule do and do not allow the admission of evidence.
- Explain the reasoning behind the traditional exceptions to the hearsay rule.
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Historical Context of Hearsay Exceptions

17th Century:
- Judges began to realize that if ALL hearsay evidence was excluded, serious crimes might go unpunished.
- Example: What if the witness died before trial? How would their evidence get admitted?
- Resulted in the development of several exceptions to the strict application of the hearsay rule, known as Traditional Exceptions to the hearsay rule.
Hearsay Evidence is generally not allowed.
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Traditional Exceptions to Hearsay

Declarations Against Interest
- Definition: A statement made by a party that is against the party’s own interest.
- Two categories leading to admissibility:
  - Declarations against pecuniary or proprietary interest.
  - Declarations against penal interest.

Dying Declarations
- Definition: A statement made by a person who is certain they are about to die.
- Applies only in criminal cases; not in civil matters.

Res Gestae or Spontaneous Statements
- Definition: A statement made in an excited state or expressing an existing physical, mental, or emotional state.
- Excited Utterance: A statement made while the speaker’s mind is still dominated by a startling event.
- Present Impression: A statement regarding a person’s perception of their present impressions or physical or mental condition.

Business Records
- Definition: A record made in the ordinary course of business by an individual performing the duties of employment who has no motive to fabricate.
- Should demonstrate assurance of reliability based on care taken in making them.

Prior Testimony
- When a party is unavailable to witness at trial due to illness, disappearance, mental incapacitation, or death, prior testimony from a preliminary hearing or examination could be used.

Prior Testimony Conditions
- Common-law Rule: Oral evidence from another proceeding may be admitted if:
  - The witness is unavailable for the trial.
  - Material issues and parties are substantially the same in both proceedings.
  - Opposite party had the opportunity to cross-examine in the earlier proceeding.

Conditions Under the Criminal Code
- Specifically defines unavailability as: dead, insane, too ill to testify, or absent from Canada.
- The judge has discretion to determine if the latter three qualify as unable to testify.

Prior Statements Made by Witnesses
- Case Reference: R v Khelawon: Prior out-of-court statements whether video-recorded or not are hearsay and not admissible unless fitting within an exception to the hearsay rule.

Identifications
- Typically occur shortly after a crime (e.g., police photo line-up).
- Witnesses should not be influenced by police during this process.
- Out-of-court identification can be considered by trier of fact if witness positively identifies accused in court.

Past Recollection Recorded
- Test for permitting a witness to reference a written note or recording (R v Meddoui):
  - Past recollection must have been reliably recorded.
  - At the time, must have been fresh and vivid to be probably accurate.
  - Witness must assert recording accurately represented their knowledge.
  - Original recording must be used if procurable.

Oral Histories of Indigenous Peoples
- Case Reference: Delgamuukw, where the Supreme Court validated oral history, stating no distinction between oral and documentary history.
- Case Reference: R v Van der Peet: Necessary proof of Aboriginal right includes:
  - Modern practice, tradition, or custom.
  - Continuity from pre-contact times to present.
  - Integral practice to culture and distinctive society.

Chapter 7: The Principled Exception to the Hearsay Rule

Learning Outcomes

After completing this chapter, you should be able to:
- Analyze traditional exceptions to the hearsay rule regarding necessity.
- Analyze traditional exceptions to the hearsay rule regarding reliability.
- Explain the principled exception to the hearsay rule in terms of necessity and reliability.
- Understand application of the principled exception to the hearsay rule.
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Wigmore’s Criteria for Hearsay

Wigmore's common thread in judge-made exceptions:
- Exceptions are necessary where the only evidence admissible is through hearsay.
- Exceptions are relatively reliable based on circumstances under which the statement was made.
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Development of the Principled Exception

Case Reference: R v Khan, [1990] 2 SCR 53
Principled Exception: Based on necessity and reliability.
- Hearsay may be admitted where necessity and reliability established, provided probative value outweighs prejudice.
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Two-Part Test for the Principled Exception

Requirement of Necessity
Requirement of Reliability

Examples of Necessity

Pearson Case (BC Court of Appeal):
- A victim of sexual assault was severely mentally disabled; the mother was permitted to testify on what her son told her (identity of the accused).
Parkinson Case:
- Police Officer permitted to give evidence of what a 96-year-old victim stated about the assailant due to fragile health.
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Admissions of a Party

Necessity: The statement can only be admitted through hearsay.
Reliability: Admissions made that undermine a party's case are more trustworthy.

Declarations Against Interests

Necessity: The individual is unavailable to give evidence.
Reliability: A person is unlikely to create false statement harming their interests unless it holds truth.

Dying Declarations

Necessity: The declarant is deceased.
Reliability: Statements made when there is no hope of living generally do not involve motives for falsehood.

Res Gestae or Spontaneous Statements

Necessity: Statement only admissible via hearsay.
Reliability: Statement made too close in time to event lacks opportunity for reflection and invention.

Business Records

Necessity: Timely justice dictates their use.
Reliability: Organizations aim to maintain accurate records despite possible motives to misrepresent.

Prior Testimony

Necessity: Witness cannot give evidence presently.
Reliability: Earlier sworn testimony was subject to cross-examination.

Prior Inconsistent Statements by Non-Accused Witnesses

Necessity: Developed to manage recanting witnesses to prevent intimidation by the accused.
Reliability: Sworn statements offer protections similar to oaths; witness can be cross-examined about their changed accounts.

Identifications

Necessity: Long durations between the crime and trial warrant these.
Reliability: Identification close to the event supports witness reliability; witnesses must be available for cross-examination.
Caution: Witnesses must not be influenced or led to identify the accused.

Past Recollection Recorded

Necessity: Witness incapable of recalling details without reference to the record.
Reliability: Records made contemporaneously are generally more reliable than later recordings.

Oral Histories of Indigenous Peoples

Necessity: Indigenous historical accounts are predominately oral rather than written.
Implication: Disregarding oral histories would hinder Indigenous Peoples' ability to pursue title claims.
Reliability: Oral histories hold comparable reliability to written histories.

Applying the Exceptions

Does the hearsay fall within a traditional exception?
Does it meet the necessity and reliability criteria from the principled approach?
If so, it will be admissible, provided it is not more prejudicial than probative.
Evidence not fitting traditional exceptions may still be admitted if meeting necessity and reliability standards from the principled approach.