Midterm Flashcards
Define Hearsay
A statement made originally outside of court but repeated and introduced in court for the truth of its contents.
Define Hearsay Exception
As a general rule a hearsay statement is excludable unless it meets the hearsay exception.
What is the general problem with hearsay exception
The author of the statement is not present in court to be cross-examined.
How much weight is a hearsay statement given - More or less weight?
Less
What is hearsay evidence considered at it’s highest?
Second-hand information
What are 4 reasons that make direct evidence better than hearsay evidence?
- The witness is under oath
- There are penalties for perjury
- The trier of fact can assess body language
- The witness can be cross-examined and testimony can be attacked
What are the accepted formats of hearsay evidence?
- Oral
- Writing
- Be implied
What is the test for hearsay?
- Is the proposed evidence originally made outside of the courtroom?
- Is this evidence being submitted to the court to show what was said is true?
- Is the maker of the statement available to be cross-examined in the proceeding?
What element needs to be present if the hearsay evidence is not being proven for the truth of its contents in order to ?
Relevance
What is another hearsay exception that speaks to mens rea?
State of mind
What is the case name that raised a duress defence for the purposes of possession?
Subramanian v Public Prosecutor
What is the general test?
You will need to show that the accused or defendant is admitting the hearsay statement not to prove its truthfulness of what was told to them but to prove the underlying belief and the action taken.
What are the two types of implied statements?
- Non-verbal communication to convey meaning
- Non-verbal communications that conveys belief about certain facts, even though the communication has no intention to do so.
When should you object to hearsay?
When the crown or witness refers to the maker of the statement or asks questions about the maker of the statement.
What case covered hearsay exception re an underage witness
R. v. Khan
Are affidavits always admitted?
No
What can a police officer rely on when it comes to hearsay from an informant?
Reliability of an informant
What is a recognized hearsay exception when it comes to an informant?
Informant privilege
What is an “RPG Statement?”
Reasonable and probable grounds (re search)
if a potential witness is dying what can be done in order to capture their statement?
A video disposition, this allows for the witness to be cross-examined
What hearsay evidence was applicable in R.v.McKinnon?
Hearsay by conduct
What case was the principled exception to the hearsay rule used in?
R. v. Khelawon
What elements are needed to be considered for the principled exception?
- Necessity
- Reliability
Define Necessity with respect to the hearsay rule
The opposite party must show that the only manner in which the statement can be admitted is by way of hearsay
What does s.10(b) cover in the Canadian Charter?
Right to counsel
What CAN NOT be considered if the witness is not in court providing evidence?
- Truthfulness
- Credibility
What are the 3 pieces of rationale for the existence of the Hearsay Rule?
- The witness is not in the hearing room to give their statement, so thier truthfulness and credibility cannot be evaluated by the trier of fact, as if they were in the hearing room.
- The witness cannot be cross-examined on their evidence.
- Because the witness is not testifying in person, they are not subject to a sanction for perjury if they give false evidence.
What is a common law hearsay exception?
A statement that is made not to prove the truthfulness of what is told but to prove the basis of their belief for the action they took
Name 3 hearsay exceptions:
- Admissions of a party
2.
Define admissions of a party
An admission of a party is anything that is said by the party by words or conduct that can be admitted into evidence and used against them;
In other words, the party may admit to something however, not all of the elements as certain admissions would carry higher penalties
This type of evidence would be inculpatory to the accused.
Is admissions of a party hearsay exception applicable in both civil and criminal cases or one only?
Civil & Criminal
What are 3 sources of formal admissions of fact by a party?
- From a party’s pleadings
- From a party’s admissions of fact in writing
- From the mouth of counsel
What is the rationale for rule on admissions?
For a party to acknowledge the uncontroversial matters and allow the matter to move onto the real issues.
What happens when a party fails to admit an uncontroversial fact?
There may be cost sanctions ordered against them.
Non-controversial facts are deemed true by lack of response after notice is given to another party….TRUE or FALSE?
True
What section of the Criminal Code allows an accused to make a formal admission of fact?
s.655 CCC
What is the standard of proof that needs to be met by the crown in a criminal case?
Beyond a reasonable doubt
What is an informal admissions made by a party?
The statement does not have to be intended as admission by a party.
Define Vicarious Admissions
A statement made by an authorized speaker for an individual, business, group, organization, etc. that can be used against a party
What are the 3 parts of a vicarious admissions test?
- Agent or Employee
- Authorization
- Third Party communication (statement must have been made to a member of the public, a journalist) by the agent or employee
Vicarious admissions does not need to be intentional to be admitted into evidence against a party….TRUE or FALSE?
True
Define Admissions by Action
Action by an accused or defendant post offence or incident
Can an admission of silence be admissible? If so, how?
Yes - If a person remains silent in the face of an accusation, the failure to make a denial may be admitted into evidence.
What are the 4 types of admissions?
- Silence
- Action
- Vicarious
4.Conspiracies and admissions by co-defendants
What is the exception to admission of silence?
When the accused is exercising the right to remain silent
What is a common design exception?
(CIVIL) When a partner makes an admission, the statement can be used against all partners
(CRIMINAL) When a co-accused makes a statement, it can be used against ALL co-conspirators.
What is the hearsay exception to a co-conspirator?
Hearsay statements made by some of the co-conpirators can only be used against the party making the statement
What is a guilty plea considered when it comes to a conspirator?
Not amdmissable against another conspirator such as a confession as this was made after the fact
What are the 3 stages of proof in a conspiracy trial?
- Conspiracy actually existed - direct eviddnce is not absolute
- The crown must establish who the members of the conspiracy are on the balance of probabilities
3.The judge must decide whether the persons who have been proved to be members of the conspiracy are guilty beyond a reasonable doubt
What is the exception to co conspirator statements?
Statements made with respect to stages 1 & 3 but not 2. - members cannot be identified via co conspirator statements.
What is meant by fantastical?
Not beyond belief
What are the two ways to get admission of facts?
- Truth & veracity
- Taking facts in a pleading
What are the two ways to get admission of facts?
- Truth & veracity
- Taking facts in a pleading
Define Declaration Against Interest?
Statements made by a party against their interests; negative consequences against the maker of the statement
What is the exception to declaration against interest?
Used against non-parties to get their evidence into the trial.
What are the two categories “against interest”?
- Statements against pecuniary or proprietary interest
- Statement again penal interest
What is the consideration for against interest statements?
Needs to be immediate
What is the case that involves 5 elements test?
R. v. Obrien
Define Res Gestae statement?
Spontaneous statement
What case covered present impression of a persons immediate surroundings; Happening in the moment?
R. v. Andrews
What does the common law rule allow admissibility of?
- Written records
- Records in oral form
Police notes are considered business records….TRUE or FALSE
False; police notes are considered hearsay records
What are the 5 elements against pecuniary interest?
- Witness is unavailable to testify.
- The statement must be against the persons financial interest.
- The maker has personal knowledge of the facts of the statement.
- Immediate financial prejudice.
- The person making the statement must have known about the prejudice.
Define Against Penal Interest
When a person makes a statement admits to committing a criminal offence
What are two qualifications of declaration against penal interest?
- The possibility of criminal prosecution cannot be remote or vague
- The possibility of criminal prosecution must be immediate
What are the elements of dying declaration?
- The maker of the statement must be deceased
- The maker of the statement must of known that they would die immediately
- The statement would have been admissible if the person lived
- The statement has to be about what caused the maker of the statement to die
- The statement has to relate to the case that relates to the death of the statement maker
The Ontario Evidence Act covers government records as business records….TRUE or FALSE
False
Define the circumstances of a Res Gestae statement (Spontaneous statement)
A person’s mind is so dominated by an event when making the statement
Name two instances of a Res Gestae statement
- Excited utterances
- Statements of present impression of a person’s immediate physical surroundings
3, Statement of physical or mental conditions - Statements of intention
What case covered “excited utterances”?
R . v. Andrews
What are the 5 elements of the common law test to determine if a document is a business record?
- The records were made in ordinary course of business
- The records were made by a person whose duty was to keep such records
- The person who made the records did so from personal knowledge
- The records were made at the time of the event
- The person making the records had no reason to misrepresent themselves
Hearsay information in business records falls within the scope of hearsay exception…..TRUE OR FALSE?
FALSE
What needs to be proven in order to submit electronic business records?
The party that wishes to submit electronic business records must show that it is the best evidence and the record represents the original.
What are the 3 elements of the common law test to consider Prior Testimony under the hearsay exception?
- The witness is unavailable to testify at the trial
- The material issues are substantially the same in both proceedings (prelim and trial)
- The opposite party had the opportunity to cross-examine in the earlier proceeding
In Civil, prior testimony can be used at the trial from the discovery…..TRUE or FALSE
TRUE - Only prior testimony give at examination for discovery can be admitted at trial; not prior testimony given in any other proceeding
In Criminal, prior testimony can be used from the preliminary hearing as long as the testimony is in written form at trial…..TRUE OR FALSE
FALSE - No prior testimony from any other proceeding can be used at trial, as the Judge at trial is different from the Judge in any other proceeding during the matter.
What would be the two parts that a party may rely on with regard to prior testimony?
- The common law rule on prior testimony
- Section 5 of the Ontario Evidence Act which provides for the admission of recorded transcripts from prior proceedings.
Voluntariness applies to a witness…TRUE or FALSE
FALSE - Voluntariness ONLY applies to an accused and the statements given by the accused in relation to the charge to a person in authority
What are the two elements of admissibility for a witness that is not a party to the proceeding?
- To undermine the credibility of the witness
- Truth of its reliability contents
What must be considered for out-of-court identification?
- The police cannot ask for a witness to make a selection to identify
- The witness must have made a positive identification shortly after the crime
- The witness must be made available to be crosses at trial on the accuracy of the out-of-court identification
What format is past recollection evidence accepted as?
- Expert witness (authenticity)
- Handwritten notes
3.
What is the hearsay exception to aboriginal peoples admission of evidence?
Oral History
What is the controlling test to the hearsay exception?
Principle exception
What are the two principled exceptions for declaration against interest?
- The interest can be pecuniary or proprietary
- Or, the interest can be against one’s penal interest
Define Ventral Vec Warning
Weight and probabtive value
What is a KGB statement?
Prior inconsistent statement
