Canadian Criminal Evidence/Hearsay

Introduction

Hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement. The definition has been stated as:

“

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

”

The definition hs been addressed in several cases.

Courts generally do not allow such evidence as it is generally said to be untrustworthy for several reasons:

1. The admission of such evidence lends itself to the perpetration of fraud;
2. Hearsay evidence results in a decision based upon secondary and, therefore, weaker evidence, rather than the best evidence available;
3. There is no opportunity to observe the demeanour of the declarant;
4. The introduction of such evidence will lengthen trials.

Types of Hearsay

Prior Consistent Statements

Reasons for excluding prior consistent statements:

1. As hearsay, they are inadmissible for proof of their content.
2. The statements are “self-serving” with regard to the witness and give rise to suggestions of oath helping.
3. The statements are superfluous, and as suggested in the second point, conflict with the rule against self-corroboration.

Traditional Exceptions

Exceptions are made under certain circumstances:

1. Statement is part of the narrative of the evidence
2. When the statement is made against the declarator's interest
3. When it is made in the course of the declarator's duty
4. When the statement is part of a public or governmental document
5. Dying declaration
6. Statements made when the declarator was in a state of shock or surprise (Res Gestae)
7. Statements describing the declarator's physical or psychological condition
8. Sworn testimony from a previous hearing
9. Past recollection recorded
10. Statement conveys "state of mind"
11. Statement conveys "present intentions"

Past Recollection Recorded

Where a witness has testified that he cannot recall core details of a statements made but that she told the truth whenever speaking to them. The Court may admit the notes or document if it is satisfied that they meet the Wigmore criteria:

1. the past recollection must have been recorded in some reliable way;
2. at the time, it must have been sufficiently fresh and vivid to be probably accurate;
3. the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and
4. the original record itself must be used, if it is procurable.

In practice counsel should establish:

1) that the witnesses memory is exhausted and cannot answer the question;

2) that a record was made by the witness or on behalf of the witness;

3) the record was made near the time that the information was learned;

4) the information was fresh in their mind at the time;

5) the information was recorded from what they knew at the time and was done as accurately as possible.

Counsel can then asks the record to be put in as an exhibit.

An example would be where asking a witness to recall a licence plate number that they observed and wrote down in a statement. This statement or note would have been made at a time when the information was fresh in their mind and they made an effort to be accurate.

The witness will be asked about whether they recall the licence plate number. Often they will not recall the number by heart, this will prompt a request to introduce past recollection recorded. Counsel should go through questions establishing the lack of memory; the existance of the record; the circumstances of its creation; and the accuracy of its contents.

See also: Present Memory Revived

State of mind

A statement of a declarant can be adduced into evidence as a hearsay exception where it explicitly declares the state of mind of the declarant. Where the declaration can infer the state of mind, it is also admissible but not as a hearsay exception, but rather as circumstantial evidence inferring the state of mind.

Spontaneous utterances / res gestae

Spontaneous or excited utterances are a class of exception to the hearsay rule. An utterance falls in this category where the evidence can characterize it as being a spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something.

Requirements to the exception usually include:

1. utterance made soon after underlying offence
2. speaker was in state of upset or trauma
3. enough probative value to outweigh any prejudice

Statutory Exceptions

There are a number of statutory exceptions to the hearsay rule.

Witnesses under the age of 18 who give video-taped statements shortly after the alleged incident may have their statements put in for the truth of their contents under s. 715.1 where the witness is able to adopt the statement in court.

Principled Approach

If a statement is necessary to a hearing, and it is reliable, it should be admitted even if it is hearsay.

Necessary

Witness refuses to testify

A witness who refuses to testify when all efforts to obtain that testimony have been taken to no avail will typically satisfy the requirement of necessity. There is no onus on the Crown to prove why the complainant failed to testify.

Child witnesses

Where the experience testifying may be so traumatic at to prevent a chlid from testifying, the requirement of necessity will be satisfied.

While in some limited cases the court may have the child testify within the voir dire to support the reliability of the statment. More often, the statement will be admitted without oral evidence and the lack of cross examination will go to the weight of the prior statement.

Reliability

The criteria of reliability deals with threshold reliability, not ultimate reliability. The judge must determine whether the statement shows sufficient reliability to afford a satisfactory basis for evaluating the truth of the statement.

Threshold reliability
Factors include:

1. the absence of a reason and/or motive to fabricate the statement (non-fabrication);
2. the timing of the statement in relation to the time of death (timing/remoteness);
3. the demeanor of the declarant at the time of the making of the statement (demeanour);
4. the spontaneity of the statement (spontaneity);
5. the relationship between the declarant and the witness (relationship);
6. the detail given in the statement (detail);
7. whether the declarant could be mistaken (mistake);
8. whether the statement was recorded and
9. “other”, including an “accurate record” - because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstance.

Factors not to be considered in determining threshold admissibility:

1. reliability or credibility of the declarant;
2. general reputation of the declarant for truthfulness;
3. prior or subsequent statements, consistent or not; and
4. presence or absence of corroborating or conflicting evidence.