Rules of Evidence, 2nd Edition

Chapter 5
Hearsay

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Hearsay
• Hearsay Rule:
• A statement, originally made out of court, that is repeated in court for the
truth of its contents, and it is not admissible evidence unless it meets a
specific exception to the Hearsay Rulet

• The twin dangers of hearsay – unsworn & untested evidence

• The maker of the statement has not taken an oath to tell the truth

• The reliability cannot be tested and examined in court in the same

way that first‐hand evidence can be tested and examined

• Hearsay statements can be in writing, by gesture or be an act

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Hearsay (cont’d)
• Safeguards have been established to ensure the reliability of
evidence from witnesses:
1. The person who made the statement is testifying under oath and
subject to sanctions or penalties for perjury.
2. The trier of fact can observe the person making the statement and
assess her reliability and truthfulness.
3. The opposing part has an opportunity to cross-examine the witness
and attack her testimony to test its truthfulness.

• Hearsay statements are not made under oath, cannot be cross‐

examined, and the trier of fact does not have the opportunity to
assess the demeanour of the statement ‐maker in court
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The Test for Hearsay

1. Is the proposed evidence a statement originally
made outside the courtroom?

2. Is it being submitted in court to show that what

was said is true?

3. Is the maker of the statement not available to

be cross-examined in the proceeding?

4. Is there an exception to the hearsay rule?

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Out-of-Court Statements That Are Not Hearsay

• If the statement is not being admitted to prove it was

true, it is not hearsay
• It may be admitted on the basis of relevancy to show what
the person who heard the statement thought after hearing it,
its effect on the person, and the state of mind

• Leading case on the admission of statements:

Subramaniam v. The Director of Public Prosecutions,
[1956] 1 WLR 965 (PC)

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• Witness testifies I heard X say “The mayor is taking

kickbacks from construction companies.”

• Can it be used in a criminal prosecution?

• What about a civil action in defamation? Mayor is suing X

for defamation.

Example from The Law of Evidence, David Paciooco

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• Tim is charged with impaired driving. Sally

testifies that she was at a party where Tim was
and someone said to her, “I hope Tim isn’t
planning on driving, he’s as drunk as a skunk.”
Sally is called as a witness by the Crown. Is her
statement hearsay?
1. Is it an out of court statement

2. Is it being tendered for the truth of its contents?

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Implied Statements
• Implied statement: An action or conduct that conveys
information to others
• Two types:

1. An action by which a person intends to communicate

information non‐verbally
2. A person’s action or behaviour that implies that she believes
certain facts even though the purpose of her action is not to
communicate a message

• If action is not intended to convey information, it cannot be

a statement and thus not hearsay
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• The plaintiff is suing the defendant for damages for personal injury incurred
as a result of the defendant’s motor vehicle running her down as she was
walking across an intersection. After the incident, a number of spectators
gathered and the plaintiff overheard one of them saying, “There’s no
question that fellow ran the yellow light. I saw him do it.” The plaintiff is also
prepared to testify that although she was dazed at the time, she distinctly
heard a voice, which she could not identify, say, “But I never even saw her
until the last moment.” The plaintiff also seeks to call a witness who will
testify that, shortly before the accident, the defendant’s vehicle passed him
in an erratic manner and his wife remarked, “Here’s a driver looking for an
accident.” Discuss whether any of these statements are hearsay.

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• The accused is charged with credit card fraud. He wants to

testify that his friend, who has since died, told him, “This is my
card and you may use it if you wish.” Is this statement
admissible? If so, on what basis?

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• Joe has been accused of public mischief. The allegation is that,

as a joke, he shouted, “Bomb! Run for your life!” on a crowded
subway platform. A huge panic ensued as people rushed to
escape. The arresting officer wants to testify that when he
asked the subway passengers to identify who shouted that
there was a bomb, several people pointed at Joe. Discuss
whether or not the officer will be able to give this evidence.

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