Hearsay is a term that refers to statements heard outside of the court that cannot be admitted into evidence because they cannot be proven. There are, however, exceptions to this where the court will consider hearsay as evidence during a trial. This post will delve into hearsay’s legal definition, discuss legal precedents, and examine circumstances where it may be admissible.
What is Hearsay?
According to the Supreme Court of Canada, the defining characteristics of hearsay are:
- An out of court statement by a third-party is produced to reinforce a claim.
- There is no opportunity to cross-examine the third-party.
An example of hearsay evidence would be a witness testifying to something they heard someone say outside of court. The idea is that another person relaying someone else’s words is less reliable than that person’s words given as testimony in a courtroom.
Is hearsay, or statements made outside of court, admissible in a court of law?
Hearsay is considered inadmissible in court unless it meets certain exceptions. The main issue with hearsay evidence is that the statement’s reliability cannot be proved or disproved through cross-examination because the person they overheard is not present in court. This lack of testing goes against the adversary system’s principles in our legal proceedings.
Important precedents and their impact on hearsay in the court:
We’ll take a closer look at two important cases related to relying on hearsay in the court.
This is a case where a retirement home supervisor was accused of assault and abusing a resident. Several residents came forward with similar accusations, but by the time of the trial, only one of the victims was able to testify in court, and the first victim had died from unrelated causes. The prosecution argued for using a videotaped statement made by the victim to the police about the events.
The Court of Appeals determined that the videotaped statement was inadmissible. It could not be confirmed to be reliable, and there was no way to cross-examine the statement to test its reliability.
This 2013 case concerns a caller phoning an accused drug dealer’s cell phone after the accused had been arrested. The caller spoke with a police officer who agreed to deliver the drugs at the usual price. The caller was not brought in as a witness. The trial judge allowed the police officer’s testimony of the contents of the call. The accused was convicted of trafficking and possession. A Court of Appeal agreed that the evidence from the call was hearsay and should not have been admitted.
What are the concerns with hearsay?
The main concerns with admitted hearsay as evidence in court are:
- The evidence is not given under oath, so there is no way for the speaker to understand the seriousness of their words. The speaker is not under oath and not aware that their words may be used in court.
- The speaker cannot be cross-examined, so there is no way to test their statements’ reliability. The hearer may have misunderstood the facts, misremembered the facts or related them in an unintentionally misleading manner, or even made a completely false statement.
Hearsay is not allowed in court because there is no way to test these potential sources of error, which can only happen if the speaker is in court during cross-examination.
What are exceptions when hearsay is admissible evidence?
Hearsay can be admissible under rule of evidence in certain circumstances, including:
- If you can establish procedural reliability for the evidence, such as a video recording of a statement where there is an administration of an oath and a warning about the consequences of lying.
- Substantive reliability is established if statements are reliably made or can be adequately tested. In this case, the judge can consider the circumstances where the statement was made and evidence supporting or conflicting with the account. This is a very high standard to meet, and a judge must be convinced that cross-examination of the statement would add little to the process.
- Narrative – Hearsay statements can also be used to establish a narrative and put other evidence into context or help evaluate a witness’s credibility.
If you have been charged with a criminal offence and have questions about hearsay meaning or how hearsay could affect your case, get in touch with William Jaksa. William Jaksa is an experienced criminal lawyer with over ten years of experience helping clients in Toronto. Contact William Jaksa today for your consultation.