Hearsay

Hearsay if any piece of information, or any statement, made outside of court, that cannot be substantiated by the person who produced the information or made the statement.

In the context of a criminal trial, an out of court statement is considered hearsay evidence if the statement is being introduced to prove the truth of its contents and where there is no ability to cross-examine the person who made the statement.

For the purposes of hearsay evidence, a “statement” refers to any written or oral statement made by a person as well as non-verbal conduct that is intended to prove the truth of the statement.

In criminal trials, all witnesses are generally expected to be present before the trier of fact (judge and/or jury), to make their statement(s) under oath, and to be subject to cross-examination on those statements by opposing counsel.

Example

Person A is on trial for drug trafficking. Person B is called as a witness by the Crown. Person B testifies that person C told her that “person A sold me drugs on at least three different occasions”. The Crown is introducing person C’s statement that person A is a drug dealer to prove that person A is guilty of drug trafficking.

The Crown does not call person C, who made the statement, as a witness. Since person C is not called as a witness, defence counsel does not have an opportunity to cross-examine person C on their statement that person A is a drug dealer. This is hearsay evidence and would be struck from the record as inadmissible.

If person B had said that person A sold her drugs on several occasions, that evidence would be admissible and would not be considered hearsay evidence. This is because person B is testifying about something she has personal knowledge of, she is present in court to make the statement, and defence counsel will have an opportunity to cross-examine her on the statement.

Is Hearsay Evidence Admissible?

Hearsay evidence is presumptively inadmissible in criminal trials. That is because the statement maker (declarant) is not in court and available to be cross-examined by the opposing party. The ability to cross-examine the oppositions witness is an integral part of the criminal trial process. If a party is unable to cross-examine, they are unable to question the reliability of the statement, the perception of the witness or to point out inconsistencies.

There are, however, several exceptions to the hearsay rule. These exceptions are discussed in the next section.

Exceptions to the Hearsay Rule

The hearsay rule stipulates that hearsay evidence is presumptively inadmissible as evidence against an accused at trial. There are, however, several exceptions to this rule. They include:

• Declarations
  • Dying declaration
  • Declarations against penal interest
  • Declarations against pecuniary or proprietary interest
  • Declarations in furtherance of a common unlawful design
  • Declarations in the course of duty
  • Declarations connected with relevant acts
  • Declarations of bodily feelings and conditions
  • Declarations of mental or emotional state
• Spontaneous exclamations
• Prior testimony
• Admissions

When a piece of hearsay evidence fits into one of the hearsay exceptions, the court must be satisfied that there is no other way to get the information into evidence, and that the evidence is trustworthy and reliable.

Just because of piece of hearsay evidence does not fit into one of the categories listed above does not mean it will necessarily be inadmissible as evidence. If the party wishing to introduce the hearsay evidence can show that it is necessary to do so, and that the evidence is truthful and reliable, it may be admitted as a Principled Hearsay Exception.

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