CAN YOU BE CONVICTED ON HEARSAY?

Can you be convicted on hearsay evidence? What is hearsay? Hearsay is a term that refers to statements made outside of the court that cannot be admitted into evidence because they cannot be proven. There is, however, a hearsay exception rule which would allow a court to out of court statements and admit evidence during a criminal trial. This post will delve into the what is hearsay in court, discuss the hearsay rule, what does hearsay mean in court, its legal definition, discuss legal precedents, and examine circumstances when written statements or oral statements may be considered exceptions to the hearsay rule.

WHAT IS HEARSAY?

According to the Supreme Court of Canada, the defining characteristics of this type of evidence is:

• 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 when a witness testifies to a out of court statement they heard. The idea is that another person relaying someone else’s words is less reliable than that person’s words given as current testimony in a courtroom. A general rule is that the best evidence comes directly from the source rather than a witness testifying about what they believed they heard and the state of mind of the person making the out of court statement. While oral statements, like dying declarations, made out of court are the most used example of hearsay, written documents like business records and medical diagnosis where there may be statutory exceptions for are also considered hearsay evidence.

Is hearsay evidence, or statements made outside of court, admissible in a court of law?

Under the rules of evidence, 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. The hearsay evidence is not sufficiently reliable to prove the truth. 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.

1. v. Khelawon

This is a supreme court 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 and thought that such evidence was sufficient to prove the truth. But it wasn’t a dying declaration which is an exception to the hearsay rule.

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 during the court proceedings.

2. v. Baldre

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, but not a police report that described the evidence presented. 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 IN COURT?

In case law the main concerns judges and most courts have with the hearsay evidence rule is:

• The evidence presented 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.
• That courts are asked to draw inferences from the hearsay statement when it is not tested 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.
• Exceptions exist for such evidence as opinion evidence if it is properly introduced

For an explanation on confronting witnesses with contradictory evidence or counter version of events, the Browne v. Dunn Rule, during trial please read the article on The Rule in Browne and Dunn.

CONTACT A CRIMINAL LAWYER

If you have been charged with a criminal offence and have questions about a hearsay statement or how hearsay could affect your case, get in touch with William Jaksa. William Jaksa is an experienced criminal lawyer with over  15-years of experience helping clients in Toronto.  Contact William Jaksa today for your consultation.