Hearsay

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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 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.

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.

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 "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 definiting 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
2. a recipient
3. a statement and
4. a purpose for introducing the statement

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 is it not possible to test the reliability of the statement such as by cross-examination.

Types of Statements

Statements and utterances are usually verbal but can include conduct that communicates meaning.

Implied Assertions

An implied assertion (also called "implied hearsay") is 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 electroncic 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 the nnumber 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 is lack sufficient context or where the meaning is otherwise unclear. The lack of context must be conisidered 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.

Purpose of Introducing the Statement

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
• 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.

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.

Topics

• Traditional Exceptions to Hearsay
• Principled Exception to Hearsay

Case Digests

• Hearsay Case Digests