The rules of evidence dictate what evidence is admissible at a criminal trial. For example, evidence may be deemed inadmissible because it is unreliable, potentially contaminated or has the potential to prejudice the jury.
One type of evidence that is generally inadmissible at trial is hearsay evidence, unless it falls within a number of categories of exceptions to the general rule.
Hearsay evidence is testimony by a witness about a statement made to that witness by another person who will not be called as a witness. If a witness wants to testify about a statement that they made out of court to another person (“I told Joe that I was going to the store”), such a statement is not hearsay and is admissible in court.
However, if a witness wants to testify about what another person told them (“Mary told me that she saw Bill running from the scene of the crime”), the statement would be considered hearsay. However, not all such statements are hearsay.
Such statements are hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay or inadmissible when it is proposed to establish by the evidence not the truth of the statement but simply the fact that the statement was made.
The official definition of hearsay is “an out of court statement offered for the truth of its contents”. If the out-of-court statement is tendered as evidence for a reason other than the truth of its contents, then it is not hearsay.
For example, imagine that Jane told Bob that she was having an affair. Bob would not be allowed to testify about that statement in court as evidence to prove that Jane was a having an affair. However, Bob could testify about the statement made by Jane as evidence that she made such a statement if that fact is relevant to the case at hand.
There are many situations where the fact that an individual made a particular statement could be relevant to an issue in the case. For example, imagine that Bob and Jane are husband and wife. Jane told Bob that she was having an affair. Bob reacted angrily and hit Jane. Bob is now on trial for domestic assault. He is trying to explain why he was upset, an issue that may be relevant to the trial.
He may want to give testimony about Jane’s statement that she was having an affair to explain his actions. Whether or not Jane was actually having an affair is irrelevant to the jury in these circumstances.
It makes no difference whether Jane was actually having an affair or whether she was lying to Bob when she made the statement. What is at issue, is that the statement was made as it may help the jury understand the context of Bob’s actions.
This is one example of when a witness can testify regarding an out of court statement. Statements admitted into evidence in this manner are not considered hearsay as they are not tendered to establish the truth of their contents.
The traditional rationale for excluding hearsay evidence is that it is manifestly unreliable. These statements can be the result of gossip, rumours, fear mongering or personal opinion — none of which is significantly reliable to form the basis of a criminal conviction.
Moreover, it is preferable to have any such statements admitted in court by a live witness who made the statement so that the traditional safeguards of witness testimony apply. These are the presence of the oath, the opportunity for observation, and the opportunity for cross-examination.
When a person makes a statement outside of court, they are not under oath the way he or she would be in a courtroom. Because of this, he or she may not have put any personal emphasis on being truthful at the time the statement was made.
The court considers the presence of the oath (and the possibility for criminal prosecution for perjury if the witness lies) as an important safeguard against dishonesty that is lacking when individuals interact and communicate outside the courtroom. Moreover, the opportunity for judge and jury to observe the witness when they make a statement allows them to look for any physical indicia that the witness is lying.
Finally, the opportunity to cross-examine the witness about his or her statement is considered to be one of most important tools available in the courtroom to determine whether a witness is telling the truth. Since out of court statements allow no opportunity for oath, observation or cross-examination, the court determines them to be generally unreliable.
There are several exceptions to the hearsay rule. The exceptions depend on fitting the statements at issue into one of the categories that have been declared exceptions to the rule. If a statement fits into a category and is thereby an exception to the rule then it is admissible at trial. Appropriately, this method of admitting hearsay statements is known as the “categorical approach”. Some of the most common categorical exceptions are:
Declarations as to Mental or Emotional States. Since there are few sources of evidence as to an individual’s emotional state other than statements made by that individual and since this information can be helpful to the court, the court will permit hearsay evidence as to the mental or emotional state of a person who is not a witness.
However, the exception is only used in circumstances where the original speaker is dead or otherwise unable to testify. The court much prefers that the original speaker come into the court as a witness and testify as to his or her mental or emotional state. The court will only allow a witness to tender hearsay evidence as to the emotional or mental state of an another person if that person cannot possibly testify.
Spontaneous Utterances. Another exception to the hearsay rule is for spontaneous utterances. These are statements made so spontaneously that it is highly unlikely that the statements were concocted or distorted.
The court must ask itself whether the statement was connected in time to the actual event such that the court can eliminate any concern of fabrication. For example, if the police took an individual by surprise as he was committing a crime and he reacted by saying “you caught me” that statement would be admissible against him.
Statements Against Interest. Another exception to the hearsay rule is an exception for a declaration made by a person concerning a matter within his personal knowledge which was made against his or her own interests.
The rationale behind the rule is that an individual is unlikely to lie in a way that puts him or her in a worse position.
In R. v. Demeter the court created a test to determine when statements against interest can be admitted as an exception to the hearsay rule.
First, the declaration must have been made to a particular person in a context where the speaker would have apprehended a vulnerability to penal consequences as a result of their statement.
Second, the court must examine the statement in its totality and find that, as a whole, it was against the speaker’s interest. If only an isolated portion of the statement is against interests and the statement as a whole worked in the individual’s favour then the exception does not apply.
Finally, the speaker would have to be unavailable to testify by reason of death, insanity, grave illness, or because he or she has absconded from the jurisdiction and cannot be found.
The fact that the speaker was simply unwilling to testify would be insufficient for the court to allow an exception to the hearsay rule. Statements against interest by an accused person are always admissible against them if they pass the test of voluntariness.
Ante Mortem Exception. In a murder trial, the court will allow witnesses to testify as to statements made by the victim about the accused before he or she died.
The rationale for allowing these statements is that they can sometimes be helpful to the court and the victim him-or-herself cannot possibly testify about the statements.
However, criminal defence lawyers often urge the court to treat these statements with extreme caution. The court should consider the identity of the victim and whether or not he or she had motive to fabricate and the identity of the witness and whether he or she has motivation to fabricate.
For example, the witness could want justice for the death of a friend or family member or have a personal grudge against the accused. However, categorical approach does not consider these factors when deciding whether to admit the statement as evidence. Under this approach, if the statement fits into the exception, then the statements will be admitted at trial.
There are several other exceptions to the hearsay rule. However, many of the exceptions suffer from weaknesses like those discussed above regarding the ante mortem exception. The categorical approach puts emphasis on categorizing the statements rather than considering whether they aid the court in reconstructing the events surrounding the crime.
Because of this, the categorical exception fell out of favour with the Supreme Court of Canada in the 1990 case of R. v. Khan. In that case, the court introduced the “principled approach” to exceptions to the rule against hearsay.
Though the principled approach does not overrule the categorical exceptions, the court will now use the principled approach to admit evidence that does not fit into one of the rigid categorical exceptions.
In R. v. Khan the Supreme Court of Canada set out a new method for determining whether hearsay statements should be admitted at trial. Under the new method the judge will hold a special hearing known as a “voire dire” where the Court will hear arguments from both sides about whether or not the statement should be admitted.
The party seeking to admit the statement must prove on the balance of probabilities that the statement should be admitted under the Khan test. If the judge determines that the statement should be admitted the jury will still evaluate the credibility and reliability of the piece of evidence in combination with all the other evidence to determine whether or not to believe the statement.
The Supreme Court in Khan set out a two-step test for the principled approach. In step one the court must as whether it is necessary to use the out of court statement. If there is another way to admit the evidence with the traditional safeguards (oath, observation and cross-examination) in place, the court will not admit the evidence in hearsay form.
Necessity can arise where the person who originally made the statement is dead, has absconded from the jurisdiction and cannot be found or compelled to testify or is incompetent by reason of mental illness.
The court may also find that there is necessity in a situation where the court determines that they cannot expect, again, or at the time of the trial, to get evidence of the same value from the same or other sources.
For example, in Khan the child victim of a sexual assault was too traumatized to testify about the assault in court. The court allowed a statement made by the child to her mother shortly after the incident to be admitted.
At the second step of the Khan test the court must determine whether the hearsay evidence is reliable. Originally the court could only consider whether there were “circumstantial guarantees of trustworthiness” surrounding the making of the statement.
This meant that the court looked at a variety of circumstances that would make up for the fact that the original speaker is not present in the courtroom testifying under oath, observation and subject to cross-examination.
Some examples of factors that suggest the statement is reliable include: whether the speaker had motive to lie, the absence of intoxication, personality or character of the speaker, the circumstances of the declaration, the timing of the declaration, and whether the declaration was spontaneous (suggests reliability) or prompted, whether the statement was made in circumstances where there is pressure on the speaker to tell the truth equivalent to the presence of an oath.
However, originally the court would not look at the substance of the statement or consider whether it was consistent with other evidence presented at the trial.
However, in the 2006 decision of R. v. Khelowan the Supreme Court of Canada suggested that judges could look at all factors, including the actual substance of the statement, and the surrounding evidence to determine whether the statement is reliable and can be admitted as an exception to the rule against hearsay. If the court finds that it is necessary to admit the evidence in hearsay form and that the evidence is reliable, it will admit the hearsay evidence under the principled exception to the rule against hearsay.
Know your rights! Have a skilled criminal defence lawyer acting on your behalf. Call Kostman and Pyzer, Barristers!
"He fought his heart out for me with skill and grace. And we won. I am so glad that I found him"