Hearsay

Question 1

What is hearsay?

Answer 1

Hearsay is a statement, originally made out of court, that is repeated in court for the TRUTH of its contents

Hearsay statements can be in writing or even implied

Question 2

When is hearsay admissible?

Answer 2

Hearsay is admissible evidence only when it meets a specific exception that permits it to be admitted

Question 3

how does hearsay relate to the reliability test?

Answer 3

the reliability of hearsay cannot be tested and examined in court in the same way that first hand evidence can be tested and examined

Question 4

Hearsay evidence has multiple relevancies, how can this be a problem?

Answer 4

This can be a problem bc any tendered fact can have multiple relevancies, therefore the question to be asked is whether or not one of those relevancies is relative and material to the trial and NOT FOR THE TRUTH OF THE STATEMENT

Question 5

What is an analytical tool (line of questioning) that is helpful to ask when deducing the relevancy of hearsay evidence?

Answer 5

asking , who is the real witness?
and if it is the person who made the statement it is then hearsay, but if it is the person who heard the statement it is non hearsay

Question 6

How does hearsay apply to statements and automation?

Answer 6

Machine products that are purely the process of automation are non hearsay
this is bc machines are never capable of producing hearsay bc they can never be cross examined

Question 7

When is something hearsay? Classic definition

Answer 7

To be considered hearsay, a piece of evidence must posses 2 qualities

1. it must be an out of court statement
2. it must be tendered to prove the truth of its contents

Question 8

What is the common law framework for hearsay evidence? What 4 questions must be considered?

Answer 8

1. If the evidence being presented qualify as hearsay then it is prima facie (on its face) inadmissible
2. does the evidence fit into a recognized common law exception? if yes, it is admissible
3. Does the evidence fit into a statutory exception? If yes, it is admissible
4. Does the evidence fit into the residual exception? is o, it is admissible (reliable and necessary equals the residual exception)

Question 9

What are some problems with hearsay?

Answer 9

The biggest problem with hearsay is that it insulates the evidence from cross examination

Where a witness cannot tell us about why a statement was made or what the particulars were about the statement (because they heard it from someone else), therefore its an out of court statement and the evidence is inadmissible

Hearsay can also include conduct, that asserts something (like pointing in a direction or giving a thumbs up)

Question 10

What qualifies an Out of Court Statements?

Answer 10

Any statement that is written or produced by someone that does not come into court
It does not matter in what form that evidence takes on
- Affidavit
Computer Printout
Video Recording
Newspaper

Question 11

Evidence safeguards and hearsay (3)

Answer 11

safeguards have been established to ensure the reliability of evidence from witness

1. the person who made the statement is testifying under oath and subject to sanctions or penalties for perjury
2. The trier of fact can observe the person making the statement and assess her reliability and truthfulness
3. the opposing party has an opportunity to cross examine the witness and attack her testimony to test its truthfulness

Hearsay statements however are not made under oath, cannot be cross examined and the trier of fact does not have the opportunity to assess the demeanour of the statement maker in court

Question 12

The test for hearsay (3)

Answer 12

1. is the proposed evidence a statement originally made outside the courtroom?
2. is it being submitted in court to show that what was said is true?
3. Is the maker of the statement not available to be cross examined in the proceeding?

Question 13

what are some out of court statements that are not hearsay

Answer 13

if the statement is not being admitted to prove it was true, then it is not hearsay
- it may be admitted on the basis of relevancy to show what the person who heard the statement thought after hearing if (its effect on the person and the state of mind)

Question 14

What is an implied statement and what are the two types?

Answer 14

Implied statements are: an action or conduct that coveys information to others
Type 1. an action by which a person intends to communicate information non-verbally
Type 2. A persons action or behaviour that implies that she believes certain facts even though the purpose of her action is not to communicate a message
- if an action is not intended to convey information it cannot be a statement and thus not hearsay

Question 15

what are non hearsay and hearsay purposes and the balancing test? 1

Answer 15

• Courts use the standard balancing test of Probative Value > Prejudicial Effect
• the hearsay - likelihood that the jury will use the evidence for the wrong purpose is prejudicial effect
• the non hearsay - likelihood the jury will use the evidence for the correct purpose if probative value
• So the court will exclude evidence that has a valid non-hearsay purpose if a jury is going to use it prejudicially (PV>PE)

Question 16

what are non hearsay and hearsay purposes and the balancing test? 2

Answer 16

Evidence that looks like hearsay can be admitted is there is a revant usage of the evidence ASIDE form the truth of the statement (non hearsay use)

2 BIG CAVEATS

1. The trial judge can exclude the evidence if the probative value of relevant use is outweighed by the prejudicial effect of the truth of the statement
2. If evidence is admitted as non-hearsay, the trial judge must instruct the jury that they cannot use the statement to prove the truth of its contents for a hearsay purpose