HEARSAY The Hearsay Analysis -
Is it hearsay:
-
Is it an out of court statement?
-
Is the declarant on the stand testifying right now?
-
Is it offered to prove truth of its contents?
-
Is the statement being offered for the truth of its contents?
-
If not being offered for its truth:
-
It is not hearsay, but then you need to ask, what is its relevance?
-
See “non-hearsay words”
-
See “implied assertion and hearsay by conduct”
-
If it’s not hearsay, move on. If it is hearsay, it is presumptively inadmissible unless:
-
It fits with a categorical exception/traditional rule:
-
Party admission [Wigmore excluded this]
-
Res gestae, or spontaneous utterances
-
Dying declaration
-
Statement against interest
-
Declaration in course of duty (Business records)
-
Testimony in prior judicial proceedings [Wigmore excluded this]
-
Prior criminal convictions
-
Statements concerning bodily/mental condition
-
Statements of intention
-
If doesn’t fit in a categorical exception, is it admissible in Principle i.e. “Principled Exception”
-
Is it reliable
-
Where necessity is great, judge may lessen reliability criteria
-
ex. Bank creating record following statutory duty shows reliability
-
Is it necessary
-
Where evidence is extremely reliable, judge may lessen necessity criteria
-
ex. Claimant is dead means may be necessary for someone else to testify
-
If it is hearsay, but is admissible under an exception or in principle, there is a discretion to exclude it where the probative value is outweighed by the prejudicial effect (Starr)
-
Would the evidence be inadmissible under any sort of other rule? If so, can’t admit it through hearsay (Couture)
-
You cannot get in through a hearsay statement that which cannot go in through the mouth of the declarant if they were available to testify (speculation, “probabilities”, statement is inadmissible hearsay itself)
Testimonial Factors Baldree, McCormick text
1. Perception: interfering or enhancing [intoxicated, conditions for observation, eye sight, distracted]
2. Memory: [influences on, time since, intervening events affecting, notes taken]
3. Narration: [use of language; what do they mean by, “that man was tall”]
4. Sincerity: [do they believe themselves]
Hearsay Dangers:
-Three Conditions for testifying truthfully NOT satisfied with hearsay Baldree
1. Oath or equivalent
2. Personal presence at trial to show demeanour
3. Cross-examination
Primary Criteria for Admissibility (Wigmore’s Ordering Principles)
1. Necessity: choice of either receiving evidence untested or losing it entirely, declarant dead/not avail for cross=ex
2. Reliability: looked for some substitute for cross-ex to support trustworthiness of statement, in way statement was given
Rationale for Hearsay Rule
-
Second hand nature of evidence, it’s not the best evidence and we could go to the source
-
Jury cannot assess testimonial factors, can’t assess weight or value because of hearsay dangers, not sure if reliable
-
Cannot determine whether statement is hearsay from examining statement alone
-
Need to know the purpose for which it is being tendered: is it for its truth, or for the fact that it was said?
-
Note: one piece of evidence can have hearsay and non-hearsay aspects
Non-Hearsay Words
Out of court statements are not hearsay when being offered for something other than truth – ie statement is relevant regardless of whether or not its true if it has PV
-
A piece of evidence may have hearsay aspect though, so judge must warn jury not to use it that way
-
Ex. Words that show state of mind: P fell on steps to D’s store, an hour before customer said steps covered with ice need to be cleared, delivery driver overheard and customer can’t be found for trial: shows D had in mind that steps needed to be dealt with even if there wasn’t really any ice
Subramanian v. Public Prosecutor 1956
-
Man found with belt of ammo, could be charged under emergency statute in Malaysia
-
Guerrilla’s threats to kill S (they abducted) unless he carried ammunition were relevant even if they were lying, because relevance based on whether or not the statements were said at all, helped S establish defence of duress for carrying ammo because he’s scared, reasonable person would have been scared by threats
Creaghe v. Iowa Home Mutual 1963 US
-
Insurance policy, insured told employee to tell broker we want to cancel policy and want cheque back, question of whether employee saying “we want to cancel policy” was hearsay in later attempt by insured to get coverage under now cancelled policy; words said to broker were contractual words
-
Words of oral K legally operative words that have meaning and value unto themselves, not for truth
-
Words that might constitute criminal offence like a threat, aren’t hearsay they’re actus of the offence
R v Wildman 1981 ONCA
-
W’s statements of knowledge of circumstances of girls death made 2 days before body was found
-
Wanted statements of himself and ex-wife to show how he acquired knowledge (ie that he wasn’t killer); W tries to adduce evidence of conversation: his wife to his friend overheard by him
-
Truth of statement not disputed, but is relevant for another reason: why or how it is W would know girl killed with hatchet before info generally available/known
Implied Assertions and Hearsay by Conduct
An out of court statement which may implicitly assert facts that are relevant/material; hearsay where it implicitly asserts facts or implies belief in facts relevant to matters in dispute; unclear area
-
If implied assertion was not intended by the maker of the statement, then the assertion is not hearsay and is admissible as circumstantial evidence Wright v. Tatham
-
Non-verbal out of court conduct can implicitly assert facts or belief in facts relevant to dispute Wysochan
-
Ex. Car accident, who was driver? Unknown witness pointed to X as driver, that’s hearsay conduct
-
Action intended by maker of gesture/communicator to communicate a message about the very issue
Wright v. Tatham 1837 UK
-
Will contested on grounds that testator not competent to make will; Marsden made will leaving lands to his steward Wright, which otherwise would go to Tatham, who’s trying to prove incompetence
-
Conversational letters written by people now deceased adduced showing competence of testator inadmissible
-
Relevance in implied assertion that testator competent, letters treat him like normal functioning human
-
Like all circumstantial evidence, court could infer competence; therefore inadmissible hearsay
-
Statute in UK and US overrules: unless you intend to communicate through your gestures or words, mere fact that one could infer from something you do doesn’t make it hearsay; intentionality needed
R. v. Wysochan 1930 SKCA
-
W and S accused each other in death of victim; Diefenbaker represented Wysochan; 3 statements as she dies:
-
Tony where’s my husband – not relevant unless you imply something from it
-
Stanley (husband) help there’s bullet in my body
-
Stanley help I’m too hot – second and third relevant if they imply she’s reaching out to husband, not fearing him so implied assertion is that he didn’t shoot her, therefore W probably did
-
Admissible as relevant circumstantial evidence of victim’s state of mind not fearing S, so S didn’t shoot her
-
Implication is that W shot her, but court has no ability to determine if she saw who shot her
-
Does implicit statement have hearsay use? If it’s not true, what relevance does it have? It does have hearsay use, but questionable whether it should have gotten in as non-hearsay
R v. Baldree 2012 ONCA
-
Accused arrested on drug charges, not tenant but found drugs and money on B; cell phone seized
-
Officer answered call while they’re searching, caller wanted an ounce of “weed” delivered; officer agreed, didn’t make delivery; evidence at trial included officer’s version of conversation with unknown caller, hearsay issue
-
Dissent (Watt): Evidence properly admitted
-
Drug purchase calls are Implied Assertion: conduct through words, caller’s requests implicitly asserting fact that D was supplier of drugs; not hearsay requiring listed/principled exception; PV over PE
-
Hearsay doesn’t depend on number of calls, the purpose for adducing matters to hearsay; admit if evidence came about in trustworthy manner or contents are trustworthy
-
Admissible in Ly; Call shows course of business, doesn’t matter if call truly for drugs so it’s not hearsay
-
Lack of opportunity to cross-ex is an issue, but no problem with testimonial factors
-
If people opening umbrellas outside and you see it, if many people do it vs. a few doesn’t matter – almost always possible to imply assertions; may not be assertion “hey it’s raining” but still some evidence of rain
-
Too unsafe to rely on just one call of person who police never pursued, hearsay purpose and PE over PV
-
Law in Ontario: Unless you have a number of calls to a phone like this, it is hearsay and more PE than PV so not admissible; this might change when Ly gets to SCC and move us closer to US version
-
Third judge says too hard, let’s just decide if it’s necessary and reliable
-
Ex. Picketers outside drug house saying shut down drug house = hearsay; but people going in and out of house coming out with drugs = circumstantial evidence
Share with your friends: |
