Principled Exception to Hearsay

This page was last substantively updated or reviewed May 2021. (Rev. # 95492)

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General Principles

The "principled approach" is an exception to the hearsay rule of inadmisibility. It is founded on the premise that a statement may be admitted as hearsay where it is established as (1) necessary to a hearing, and (2) is reliable. These applications are sometimes referred to as a KGB, Khelawon, or Bradshaw application.

It recognizes that certain types of hearsay statements present "minimal dangers and its exclusion...would impede accurate fact finding."

When considering a prior inconsistent statement the court must begin by presuming that the statement is inadmissible for the truth of its contents unless it has been established there is sufficient indicia of trustworthiness.

Before hearsay evidence can be admissible under the principled exception it must be relevant and has been determined whether it already fits in a traditional exception.

Even when the hearsay evidence is reliable and necessary, there is still a discretionary ability to exclude the evidence where the prejudicial effect outweighs the probative value.

The requirements of necessity and reliability are act as a "evidentiary gatekeeper."

The statement must be sufficiently reliable to "overcome the dangers arising from the difficulties of testing it."

The "overarching principle" is the admission of hearsay is trial fairness, which includes not simply the rights of accused but also the societal goals of truth.

Threshold reliability requires the hearsay to be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”.

Burden and Standard of Proof

The onus is upon the person seeking to admit the hearsay on a balance of probabilities to prove both necessity and reliability.

It has been acknowledged that the application of the principle approach is "complex."

Relationship Between Necessity and Reliability

The criteria to evaluate necessity and reliability "work in tandem" such that where one is established the other requirement can be "relaxed". The deficiencies of the other category can be "overcome" by the other.

Relationship Between Threshold and Ultimate Reliability

The judge has only a "limited role" in assessing threshold reliability at the admissibility stage. At the admissibility stage, they must be careful not to "pre-determin[e] ...the admissibility voir dire."

Discretion to Exclude

Where the criteria for the principled exception are satisfied, the judge still has the discretion to exclude evidence where its probative value outweighs its prejudicial effect.

Appellate Review

Admissibility of evidence is reviewable on a standard of correctness. The determination of threshold reliability is "entitled to deference" unless there was an error in principle.

Voluntariness

Where the statement being admitted is one of an accused person, even if a former co-accused, the Crown must also prove voluntariness by establishing on the balance of probabilities that the statement "was not the product of coercion in any form, whether it involves threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct."

Procedure

A recommended procedure to deal with an application to admit hearsay under the principled approach:

1. The first matter to determine before embarking on a hearsay admissibility inquiry is whether the proposed evidence is hearsay. An out-of-court statement will be hearsay when:
   1. it is adduced to prove the truth of its contents (the purpose); and
   2. there is limited or no opportunity for a contemporaneous cross-examination of the declarant (the concern)
2. Once the proposed evidence is identified as hearsay, it is presumptively inadmissible, unless it falls under a traditional common law exception to the hearsay rule or is admitted under the principled approach to the hearsay rule
3. Whether the hearsay meets the necessity and threshold reliability criteria under the principled approach will be determined on a voir dire. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.
4. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge's function (as gatekeeper) is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact
5. The criterion of necessity is founded on society's interest in getting at the truth and is intended to ensure that the evidence presented to the court be in the best available form, usually by calling the maker of the statement as a witness. If that is not possible, it may be that if the evidence is to be adduced at all, it can only be presented in its hearsay form
6. The criterion of threshold reliability is about ensuring the integrity of the trial process and is usually met:
   1. by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about; or
   2. by showing that, in the circumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive. In cases where the declarant is available to be cross-examined, the focus will necessarily be on the latter way
7. A distinction must be made between "ultimate reliability" and "threshold reliability." Only the latter is inquired into on the admissibility voir dire. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence
8. Relevant factors to be considered cannot invariably be categorized as relating either to threshold or ultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them
9. Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes that give the trier of fact a sufficient basis to assess the statement's truth and accuracy. Whenever the threshold reliability requirement is met on this basis, there is no need to inquire further into the likely truth of the statement
10. Even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect

A first step to the admission of hearsay is to determine if supposed hearsay is even relevant to the case.

A KGB application is typically one made by the Crown, but may also be made by the defence. The defence is permitted to apply to put a previous inconsistent statement into evidence for the truth of its contents.

Before a KGB application can be undertaken the court must first be satisfied on a threshold that the prior inconsistent statement is the sole evidence of the witness and that the statement is consistent with the evidence in court.

Necessary

• Necessity Under the Principled Approach to Hearsay

Reliability

• Reliability Under the Principled Approach to Hearsay

Balancing Probative Value and Prejudicial Effect

After considering necessity and reliability, the judge retains discretion to exclude evidence where the "potential prejudice substantially outweighs the potential probative value."

A reviewing court owes deference to the discretionary decision of the trial judge.

This process also permits the judge to "relax" the rules of evidence when applied to the defence when necessary to prevent a miscarriage of justice. This decision is also owed deference.

Types of Prior Statements

Agreed Statement of Facts

Nothing "per se renders a statement of fact", such an agreed statement of fact by a co-accused on a guilty plea, inadmissible due to unreliability.

On a guilty plea, the accused is acknowledging that the statement is "substantially correct". This is not a statement but is an acknowledgement of truth through counsel.

The process used to generate an agreed statement of fact does not satisfy threshold reliability to be admissible for the truth of its contents under the principled exception to hearsay.

It has been suggested that where the co-accused has plead guilty and later testifies against other accused by way of KGB statement it should only be admitted in "the most exceptional cases."

An agreed statement may pass threshold reliability where it is accompanied by additional indicia of reliability, including where the accused swears to the contents of the agreed statement of fact under oath at the time of guilty plea.

Video Taped Interview

The presence of the declarant for cross-examination and the video tape of the declarant goes virtually "all the way" to establish a means of assessing reliability.

See Also

• Traditional Exceptions to Hearsay
• Hearsay (Cases)