Hearsay

This page was last substantively updated or reviewed August 2021. (Rev. # 95261)

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Introduction

Hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement. It is a type of evidence that is generally considered inadmissible.

The hearsay rule has been stated as:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

– N/A

The definition has been addressed in several cases.

Any out-of-court statement that is adduced simply to prove the statement was made is not hearsay. The statement is admissible as long as it is relevant.

Allowing in hearsay can compromise trial fairness and the truth-seeking process.

When hearsay is elicited on cross-examination it will still be inadmissible.

Reasons for Exclusion

Hearsay statements are difficult to assess for trustworthiness.

Courts generally do not allow such evidence as it is generally said to be untrustworthy for several reasons:

1. The admission of such evidence lends itself to the perpetration of fraud. This is in part due to the lack of oath on the part of the source.
2. Hearsay evidence results in a decision based upon secondary and, therefore, weaker evidence rather than the best evidence available. Related to this, there is no opportunity to cross-examine or otherwise test the evidence of the source.
3. There is no opportunity to observe the demeanour of the declarant, thus making it harder to assess the quality of the evidence.
4. The introduction of such evidence will lengthen trials.

These concerns include the inability to investigate the "declarant’s perception, memory, narration, or sincerity."

These are known as the hearsay dangers.

Additional concerns were also identified:

1. "the declarant may have misperceived the facts to which the hearsay statement relates";
2. "even if correctly perceived, the relevant facts may have been wrongly remembered; "
3. "the declarant may have narrated the relevant facts in an unintentionally misleading manner; and"
4. "the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination."

Of these dangers, the lack of contemporaneous cross-examination is the most essential defining feature.

Allowing hearsay evidence "compromise trial fairness and the trial’s truth-seeking process."

Elements of Hearsay

Where hearsay potentially arises, there are four elements to consider for the rule to be engaged:

1. a declarant (who does not testify)
2. a recipient (who does testify)
3. a statement (that is being tendered) and
4. a purpose for introducing the statement (proof of the truth of its contents)

The first three are almost always made out, the fourth requirement is usually the source of controversy. Not every out-of-court statement is hearsay.

The prohibited purpose consists of admission for the purpose of proving the “truth” of its contents. Otherwise, it is admissible evidence. That is, statements that used to show the recipient had notice, knowledge or motive or was in some way probative then it is otherwise admissible.

If it is for the “truth of its contents,” then it is presumptively inadmissible unless it fits in a traditional categorical exception or under the principled exception. The primary reason for this is that it is not possible to test the reliability of the statement such as by cross-examination.

Hearsay applies equally to out-of-court statements made by witnesses who do testify. In such cases, the hearsay rule applies once the witness "does not repeat or adopt the information contained in the out-of-court statement."

Types of Statements

Traditionally, hearsay applies to oral statements and written statements. While "statements" are usually in the form of spoken or written words, they will include conduct that communicates meaning, such as a head shake or nod.

Implied Assertions

An implied assertion (also called "implied hearsay") is an act or utterance that conveys some information to the recipient in an implied manner. Such conduct can include:

• nodding the head
• pointing to someone in accusation
• pointing at something
• shrugging shoulders
• showing something to someone

The trier of fact must determine the meaning of the words that were intended to be conveyed.

Non-assertive conduct, however is conduct from which a statement can be inferred based on the declarants belief.

Courts do not make a principled distinction between implied assertions and explicit hearsay.

Computer Records

The absence of data in a computer system is not generally hearsay. For example, inquiries into the police records regarding a suspect that result in a negative result was found not to be hearsay.

Phone Calls or Text Messages

Discovered electronic communications are routinely admissible despite them consisting of hearsay.

This is in part because text messages are, "in essence," electronic conversations where the only practical difference is the "transmission process."

The reliability of communications is generally high. They are often spontaneous and contemporaneous with the events they describe.

The reliability of text messages will increase where there is a greater number of text messages on a single subject. The lack of full context in longer conversations will generally go to weight. By contrast, reliability may be undermined where the message lacks sufficient context or where the meaning is otherwise unclear. The lack of context must be considered when deciding what meaning to make from the conversation.

Drug Purchase Calls

Drug purchase phone calls, usually where the police are on the other end of a call, have a history of litigation to exclude them as hearsay. More often than not they have been admitted as either necessary and reliable or as non-hearsay.

Other Examples

The possession of ID with a person's name is not necessarily hearsay as the probability of possessing a document of that description is probative to ID.

Guilty Pleas of Co-Accused

The guilty plea of a co-accused is a form of hearsay. This form of hearsay is "rarely" admissible.

Purpose of Introducing the Statement

The admissibility of a purported hearsay statement will vary depending on the intended purpose or use of the statement. It is not "an inherent characteristic" to the evidence.

As "Original" Evidence

A statement is said to be tendered as "original" evidence where it is tendered for a purpose other than for the truth of it's contents.

Typical non-hearsay uses of out-of-court statements include:

• officers testifying to their reasonable and probable grounds to perform some duty
• the fact that the statement was made
• proof of knowledge of accused
• complicity or conspiracy
• authorship
• narrative
• investigative narrative to counterclaim that the investigation was inadequate.

Where evidence of an out-of-court statement is being used for a non-hearsay purpose (not for the truth of its contents), it will still be limited by relevance, probative value, and may be subject to a limiting instruction to a jury.

Corroborating Statements of Co-Accused

The out-of-court statements of a co-accused will be hearsay and cannot be admitted for the purpose of corroborating a witness.

Exculpatory Statements

Hearsay statements of the accused that are exculpatory are still presumptively inadmissible under the general rule of hearsay.

Conspiracy

A communication by a co-conspirator in furtherance of a common unlawful design that makes out the conspiracy can be admissible to prove the existence of a prior agreement.

Opinion Evidence

Non-specific hearsay opinion evidence is inadmissible.

Others

See also Prior Consistent Statements - a form of hearsay

State of Mind

An out-of-court statement can be admitted as proof of the speaker's state of mind.

Medical Diagnosis

It is generally not acceptable hearsay to establish a medical diagnosis only by the oral evidence of the patient. A medical diagnosis or opinion may be admissible for the fact that it was said and not for the truth of its contents.

Topics

• Traditional Exceptions to Hearsay (including Statutory Exceptions)
• Principled Exception to Hearsay

Case Digests

• Hearsay Case Digests