Traditional Exceptions to the Hearsay Rule (Ch. 6) Flashcards
Anything said by a party by way of word or conduct that the other party wishes to introduce against that party
Admission of a party
(applicable in civil and criminal cases)
Formal or Informal Admission?
Party to the proceeding admits that certain facts are true, thereby relieving the opposing side from proving those facts at trial
Formal admission - the party is bound by this admission
Formal or Informal Admission?
Any statement made by a party that the other party wishes to use against them
Informal Admissions - they are often not part of the trial process but arise from relations between the parties
What are the 4 different forms of admission?
- vicarious admission
- admissions by action
- admissions by silence
- conspiracies and admissions by co-defendants
What are the criteria for determining if vicarious admissions are admissible?
- must be proof the speaker was an agent or employee of the party at the time the statement was made
- must have been authorized to speak on the topic in issue
- statement must have been made to a third party
Failure to make a denial may be admitted into evidence as what type of admission?
Implied admission (admission by silence) - if the silence manifestly implies an admission
A rule allowing evidence against one member of a conspiracy as evidence against all other memebers
Co-conspirator exception
What is a declaration against interest?
A statement made by a party that is against the party’s own interest.
Can be against pecuniary or proprietary interest or against penal interest
When is a dying declaration applicable?
Only in criminal cases when the person is certain they are about to die.
A statement made in an excited state or expressing an existing physical, mental, or emotional state
res gestae OR spontaneous statement
A statement made while the speaker’s mind is still dominated by a starting event
Excited utterance
A statement regarding a person’s perception of their immediate physical surroundings or actions
Present impression
A record made in the ordinary course of business by an individual performing the duties of employment who has no motive to fabricate
Business record
When a party is unable to be a witness at trial due to illness, disappearance, mental incapacitation, or has died, what kind of testimony can be used?
Prior testimony from the preliminary hearing or the examination for discovery could be used
According to the common law rule, oral evidence taken at another proceeding may be admitted at trial for the truth of its contents if:
- the witness is unavailable for the trial
- the material issues and the parties are substantially the same in both proceedings, and
- the opposite party had the opportunity to cross-examine in the earlier proceeding
Under the Criminal Code, what are the 4 criteria defined for a witness being unavailable for the trial?
Being:
* dead
* insane
* too ill to testify
* absent from Canada
Before this case, out-of-court statements, and whether or not the witness was present in court to give evidence, are hearsay and cannot be admitted for the truth of their contents unless they fit within an exception to the hearsay rule.
R v Khelawon
When does identification typically occur?
Shortly after a crime.
eg. a police photo line-up
If a witness can positively identify the accused in court, the out-of-court identification can be considered by the trier of fact in determining whether ID has been proven to what standard?
Beyond a reasonable doubt
As written in R v Meddoui, a test for permitting a witness to refer to a written note or other recording has what 4 parts?
- past recollection must have been recorded in some reliable way
- at the time, it must have been sufficiently fresh and vivid to be probably accurate
- the witness must now be able to assert that the recording accurately represented their knowledge and recollection at the time
- the original recording itself must be used, if procurable
In Delgamuukw, the Supreme Court validated what about oral history and documentary history?
There is no distinction between Indigenous oral and documentary history
In R v Van der Peet, the Supreme Court established what two pieces of necessary proof of aboriginal right?
- there must be a modern practice, tradition, or custom (that is, salmon fishing for trade)
- continuity from pre-contact times to the present
Must have been integral to the people’s culture and the people must have had a distinctive society
What is the difference between an admission and a confession?
- admission is made to anyone not in authority
- confession is made to someone with authority (ie a judge)
Which case outlines hearsay and admission rules?
R v Evans
If someone is accused of fraud, then deletes all their files (post offence conduct), what type of admission is this?
Admission by action
A defendant not responding to a plaintiff’s claim within 20 days is considered what type of admission?
Admission by silence/implied admission
What is a precondition for admission of silence when a statement is made in the presence of the party?
That the other party would be expected to respond (e.g. you stole my laptop -> no I didn’t).
Failure to respond leads to the inference that the party adopts this statement, the probative value is higher than the prejudice
What is a “severance of accused” motion for?
To separate trials and use them as witnesses against each other
What is needed to prove conspiracy?
You must have an agreement/an intention to fulfill the criminal purpose
What are the 3 stages to proving conspiracy?
- Allowed to use hearsay - must prove conspiracy beyond a reasonable doubt
- no hearsay - must demonstrate who the people involved are on a balance of probabilities
- The judge considers these 2 factors to see if the members of the conspiracy are beyond a reasonable doubt then when proven, can use members statements against all other members
