The basic rule of evidence is that all relevant evidence is admissible. However, there are exceptions to this basic rule. One of the main exceptions is the rule against hearsay. But what exactly is hearsay? Today’s blog post will be a very basic overview of a complicated, tricky legal concept.
What is hearsay?
In R. v. Khelawon, the Supreme Court laid out the essential defining features of hearsay are:
- the fact that the statement is adduced to prove the truth of its contents; and
- the absence of a contemporaneous opportunity to cross-examine the declarant.
This definition can still be confusing. One easy example of hearsay evidence is a second-hand account:
Greg: “A few years ago, Bob asked Sandra if she would leave the house to him in her will.”
Presuming Greg was the one giving evidence under oath (such as by way of affidavit or examination), the above would be inadmissible due to the rule against hearsay. The reason for this is the difficulty of testing the evidence for reliability without calling Bob or Sandra as a witness. In R. v. Baldree, the Supreme Court outlined that the problems with hearsay evidence are the following:
- the declarant may have misperceived the facts to which the hearsay statement relates;
- the declarant may have may have wrongly remembered the relevant facts;
- the declarant may have narrated the relevant facts in an unintentionally misleading manner; and
- the declarant may have knowingly made a false assertion.
Hearsay evidence is presumptively inadmissible. However to complicate matters further, the rule against hearsay comes with its own exceptions. Each exception comes with its own nuances, rules, and tests which are beyond the scope of this blog post, but some of the common exceptions to the hearsay rule are:
- Hearsay evidence in the form of business records;
- Res gestae, or spontaneous utterances;
- Statements against interest; and
- Testimony from prior judicial proceedings.
Additionally, hearsay evidence that is admitted despite not falling under a preexisting exception does so under the principled exception to the hearsay rule. Essentially, the more reliable and necessary a hearsay statement is, the more likely it may be admitted as evidence.
Necessity is measured by how available the evidence is from another source. If similar evidence is available from another source, the court is less likely to admit the hearsay evidence. For example, Greg’s testimony that Bob rented a house may not be admissible if a copy of Bob’s rental agreement is available.
In R. v. Srun, the Ontario Court of Appeal noted that reliability can be established in either or both of two ways:
- Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination.
Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying.
- Substantive reliabilityis established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement.
The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process.
Hearsay is a difficult concept, riddled with exceptions that make even seasoned lawyers’ heads spin. That said, the golden rule will always apply: tell the truth, and nothing but the truth.