General Principles of Hearsay

Question 1

What is hearsay

Answer 1

Hearsay Evidence: An out of court statement tendered in court as proof of truth of its contents and with an absence of contemporaneous cross examination.
● Hearsay declarant makes statement out of court
● Witness observes the statement
● Party to court action calls witness to testify as to statement of declarant
● Party thus invites trier of fact to rely on the declarant’s statement as proof of truth of contents

● Can be hearsay even of the assertion it is trying to prove as truth is implicit. (wanting to buy drugs implies dfd is drug dealer - R v Baldree)

Question 2

Rule against hearsay and why

Answer 2

RULE: Hearsay is NOT admissible for proof of truth of its contents
● Policy:
○ Not given under oath
○ Not subject to C.E.
○ Trier of fact didnt have opportunity to assess credibility via demeanor/testimonial factors
○ Trier of fact unable to verify that statement was even made to begin with
○ Concern about reliability, honesty, trustworthiness. Absence of circumstantial guarantees of trustworthiness. PF concerns.

● Can be hearsay even of the assertion it is trying to prove as truth is implicit. (wanting to buy drugs implies dfd is drug dealer - R v Baldree)

Question 3

When might hearsay not be used for proof of contents?

Answer 3

Distinction Between Hearsay as Proof of Contents and Other Issues
● Depends on elements of offence
● If used for credibility, then it is not for proof of truth of contents and is admissible (ex prior inconsistent statements)
● If used for proof of duress, not hearsay, not excluded (Subramaniam)
● If used to show knowledge of dfd, not hearsay, not excluded (Wildman)
● Can be hearsay even of the assertion it is trying to prove as truth is implicit. (wanting to buy drugs implies dfd is drug dealer - R v Baldree)