Hearsay

Question 1

What is the rule on hearsay?

Answer 1

A statement made out of court may not be presented in evidence as proof of its contents = is inadmissible (example of an exclusionary rule)

Question 2

What questions needs to be asked when addressing a possible hearsay?

Answer 2

1. Does evidence fall within definition of hearsay evidence. If yes, then it’s prima facie inadmissible
2. Does it fall within one of exceptions to general exclusionary rule?

Question 3

Where hearsay evidence is critical to case, what factors is depended on it being a fair trial?

Answer 3

• Whether there is good reason to admit evidence pursuant to CJA
• Whether evidence can be shown to be reliable and
• extent to which counterbalancing measures have been properly applied (e.g., exclusionary discretion)

Question 4

When can hearsay be admissible based on s.114 CJA?

Answer 4

If it falls within one of exceptions:
a) provisions of this chapter or any other statutory provision makes it admissible,
b) any rule of law preserved by s.118 makes it admissible
c) all parties to proceedings agree to it being admissible
d) court is satisfied that it’s in interest of justice for it to be admissible

Question 5

What is asked to determine whether something is hearsay?

Answer 5

1. Identify relevant fact (matter) it’s sought to prove
2. Ask whether there is a statement of that matter in the communication
   
   • if no, then no question of hearsay arises
3. If yes, ask whether it was one of the purposes of the maker of communication that recipient, or any other person should believe matter or act upon it as true
   
   • if yes, hearsay

Twist 3-stage test

statement: any representation of fact or opinion made by person by whatever means

Question 6

What is not hearsay?

Answer 6

• Private diary: no intention by writer to make anyone else read diary so no intention to make them believe anything
• CCTV
• Questions: where communication only consists of asking questions
• evidence of words spoken out of court: admissible as original evidence - evidence of word is to show it was spoken rather than they were true, if so, not hearsay??
• falsehood: where party adduces evidence of what was said out of court while asserting that it’s not true
• out of court statement that helps prove a fact in issue or is a fact in issue

original evidence = relevant statement adduced for some reason other than to prove statement is true (e.g., to show state of mind of maker of statement)