Hearsay Exceptions Flashcards
Threshold test for hearsay exceptions
Threshold Test: if it is hearsay and not subject to an exception, it cannot be admitted for truth. Otherwise yes. (thus need an exception)
What are the hearsay exceptions (list)
- Prior Inconsistent Statements (If for proof of truth of contents rather than just credibility):
- Prior Identification
- Prior Testimony
- Prior Convictions (ie to what extent can crown prove the same allegations in a different proceeding)
- Admissions (by a party - so either accused/plf or dfd/plf - goes in for proof of truth of contents)
- Declarations Against Pecuniary or Proprietary Interests by a Non-Party
- Declarations Against Penal Interest By Non Party
- Dying Declarations
- Declarations in the Course of Duty / Business Records
- Res Gestae
Describe the prior inconsistent statement hearsay exception
Prior Inconsistent Statements (If for proof of truth of contents rather than just credibility):
● (1) Reliability - must be reliable enough to substitute for oath and cross examination. Can happen where:
○ KGB Criteria: (dont need all 3, holistic approach)
■ Made under oath or solemn affirmation and preceded by warning as to the significance of oath/affirmation and the existence of sanctions
■ Statement is videotaped in its entirety
■ Other party has the opportunity to C.E. on statement
● (2) Necessity - cant get elsewhere
Describe prior identification hearsay exception
- Prior Identification - two steps:
- Witness must identify suspect before attending court. Must have certain indicia of reliability for a prior identification or it can be thrown out as unreliable:
a. Identification should occur early as possible
b. Within the fairest circumstances
c. Both the witness and other people attending the identification will testify concerning the prior identification. - Dock Identification - witness identifies suspect in court and testifies that the suspect is the same person as previously identified. (confirmatory)
● Three potential scenarios:
○ All is good, evidence admissible.
○ Witness recants prior identification. Prior identification is then treated as PIS and falls under KGB Hearsay Exception if meets criteria.
○ Witness doesn’t recant but cannot recall prior identification. May have to call police officers who conducted it. No hearsay exception for this, so must evaluate for reasonable necessity an reasonable reliability under the principled approach.
Describe Prior Testimony Hearsay Exception
Prior Testimony
● Common law tests - all 4 must be satisfied:
○ Witness is unavailable
○ Parties are substantially the same as in previous proceeding (ok if crown instead of plf)
○ Material issues to which the evidence is relevant are substantially the same
○ Person the evidence is used against had the opportunity to C.E. during the previous proceeding
Crim Code s715 (specific to crim context) -EXAMINABLE:
Evidence at preliminary inquiry may be read at trial in certain cases
● 715 (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person
○ (a) is dead,
○ (b) has since become and is insane,
○ (c) is so ill that he is unable to travel or testify, or
○ (d) is absent from Canada,
● and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
● Wigmore says under 715 isnt hearsay anyways because was subject to C.E.
● Note: defense lawyers dont do full C.E. at prelim trial because might tip off crown. BUT this forfeits benefit of s715. So if witness might run, do a full C.E. to get it on record and to prevent the witness statement from going in unexamined (despite risk of alerting crown)
● R v Potvin
○ Under cc s715 the emphasis is on whether there was an OPPORTUNITY to C.E. witness during prelim. If they did not use the opportunity, it wont violate accuseds s7 charter rights or right to fair trial. BUT trial judge still has discretion to exclude transcripts from evidence if they are prejudicial enough, or if 715 is abused by the Crown.
● Admissibility of testimony from prior civil proceedings is governed by rules of court
Describe prior convictions exception to hearsay
Prior Convictions (ie to what extent can crown prove the same allegations in a different proceeding)
● Use of prior convictions as proof of facts in civil proceeding
○ Party can be questioned as to prior convictions and opposing party can prove them if witness denies
● If producing crim record of accused, need to provide notice
● Previous acquittals are not admissible in civil proceedings because irrelevant, and double jeopardy rule charter s11h.
● Party to civil action against whom a prior conviction is used will be barred from relitigating the merits of the crim conviction in the civil case, because violates res judicata
● Exceptions:
○ When crim proceeding is tainted by fraud or dishonesty → prosecutorial misconduct
○ When fresh evidence previously unavailable impeaches the previous conviction
○ When fairness dictates that the original result should not be binding in new context (if stakes are higher in civil - ex torture, deportation)
Admissions by a party exception to hearsay
Admissions (by a party - so either accused/plf or dfd/plf - goes in for proof of truth of contents)
● Admission must go against party interest.
● Admissions need not include personal knowledge
○ That the party indicates belief or acceptance of the truth of the statement may have legal relevance
A) Admission by conduct
B) Admissions by Silence
C) Vicarious Admissions
D) Admissions in furtherance of a common design (unique to crim law)
E) Statements made by a trustee in his or her capacity as a trustee are admissible against beneficiaries
F) statements made by those with privity of estate or privity of interest
● Note: limits on admission of confessions in crim proceedings isnt applicable in civil context.
Describe admissions by silence exception to hearsay
Admissions by Silence
○ Rare because implications for charter right to silence
○ Requirements:
■ Statement, usually an accusation, made in presence of party
■ In circumstances such that party would be reasonably expected to respond
■ Party’s failure to respond can lead to reasonable inference that the party has adopted the statement
■ Probative value outweighs prejudicial effect
Describe admissions by conduct exception to hearsay
○ Ex. Fleeing policy - may support inference of guilty mind
Describe vicarious admissions exception to hearsay
○ Turns on whether hearsay declarant was an agent/employee of the party and made the statement within the scope of agency
○ Case law is divided on whether the party needs to have authorized the statement
○ Statement need not necessarily have been made to a 3rd party - can have been made by agent to principal, or recorded privately
Describe admissions in furtherance of a common design exception to hearsay
Admissions in furtherance of a common design (unique to crim law)
○ Jury is to consider whether on all the evidence they are satisfied BRD that alleged conspiracy in fact existed. If not satisfied, must acquit.
○ If conspiracy did exist as alleged, must review all evidence that is directly admissible against accused and decide on BOP whether he is a member of the conspiracy
○ If so, they can apply hearsay exception and consider the acts and declarations made by the co-conspirators in furtherance of the conspiracy as evidence against the accused on the issue of guilt BRD
○ They should be told that this determination is for them alone and the mere fact they found sufficient evidence directly admissible against the accused making his participation in the conspiracy probable, and to apply the hearsay exception, doesnt make a conviction automatic. Must be satisfied BRD as to existence of conspiracy and the accuseds membership in it.
Describe the declarations against pecuniary or proprietary interests by a non party exception to hearsay rule
Declarations Against Pecuniary or Proprietary Interests by a Non-Party
● Statement against interest - non party witness.
● Requirements:
○ Declarant is unable to testify
○ Statement when made is against declarants interest (immediately prejudicial at time said)
○ Declarant had personal knowledge of the facts
● Civil: often accepted routinely, with little scrutiny, because of potential relevance to cause of action (ex breach of contract, settlement of debt, representation etc).
● Crim: indications of reliability such that there is confidence that declarant wouldnt have made the statement unless he believed contents to be true.
● No need for awareness that statement could be against their interest
● An equivocal statement can be accepted as is, with weight left to trier of fact
Describe declarations against a penal interest by non party hearsay exception and the special rules required to admit
● Ex. party on trial, 3P says they did it.
● Special strict rules to admit (due to concern of fabrication:
○ Declaration is made in such circumstances that declarant should have apprehended vulnerability to penal consequences as a result
○ Vulnerability to penal consequences cannot be remote
○ In totality, the tenor of the statement must weigh against the declarant’s interest in order to be admitted. This makes the admission of equivocal statements unlikely (ex self defense)
○ Whether there is other circumstances tying the declarant with the crime, and whether there is any connection btwn declarant and accused (father-son)
○ Whether the declarant is unable to testify, even from death bed, by reason of death, insanity, or absence in a jurisdiction in which Canadian legal process doesnt apply. → has to be impossible for them to testify themselves before statement allowed in.
Describe the requirements for dying declaration exception to hearsay
○ Deceased had a settled and hopeless expectation of almost immediate death
○ Statement was about the circumstances of death
○ The statement would have been admissible if the deceased had been able to testify
○ The offence involves the homicide of the deceased.
Describe declarations in the course of duty / business records exception to hearsay
● Comes from when people ran own businesses etc.
● At CL:
○ Made reasonably contemporaneously
○ In the ordinary course of duty
○ By persons having personal knowledge of the matters
○ Who are under a duty to make the record or report
○ There is no motive to misrepresent the matters recorded
● Necessity: CL used to insist that declarant be deceased, but necessity can now be found n other situations (ex made by an unidentifiable employee).
● Evidence acts now cover most situations involving business records
● CL exception still applies to oral statements and hand written records
