*this article was updated February 8, 2022
6 Tips you didn't know about Hearsay Evidence
Tip #1:
Your chances of winning your criminal case may depend on the right facts getting before the judge or jury. But real life facts are not necessarily admissible in the case. When it comes to 'hearsay evidence', a trial often involves complex legal arguments about whether 'hearsay evidence' should be allowed in.
Your chances of winning your criminal case may depend on the right facts getting before the judge or jury. But real life facts are not necessarily admissible in the case. When it comes to 'hearsay evidence', a trial often involves complex legal arguments about whether 'hearsay evidence' should be allowed in.
Tip #2:
What is 'hearsay'? Hearsay evidence can be described as written or oral statements, or even other communicative conduct, made by someone outside of the court proceeding – if it is used to establish the truth of the contents of the statement.
Tip #3:
If evidence is hearsay, it likely is not admissible in court. Here's the reasoning behind that: It is presumed to be inadmissible because its reliability cannot be challenged through cross-examination. After all, the maker of the statement is not there to testify in court. Essentially, it is gossip. Makes sense, right?
Tip #4:
But there are many exceptions to the general rule that hearsay evidence cannot be used in a trial. Examples are statements which accompany and explain the event to which they pertain, or are a spontaneous exclamation made in reaction to a startling or exciting event. An example of hearsay evidence that was admissible under this exception: shortly after a stabbing, the accused said in a high-pitched and distressed voice 'I didn't mean it, call an ambulance, call the police, I'm sorry I didn't mean it'.
Tip #5:
Even if there are no traditional exceptions allowing hearsay evidence to be admitted, it could still be admitted under the 'principled exception' to the hearsay rule. The test, on a balance of probabilities, is whether the evidence is 'necessary and reliable'. It might be 'necessary' if, for example, there is no other way to get the evidence before the court. It can be more difficult to prove that it is 'reliable'. How to overcome the dangers of hearsay evidence – that the truth of it cannot be tested through cross-examination? To assess reliability, the judge can consider, for example, if other evidence corroborates or conflicts with the hearsay statement.
Tip #6:
Since arguments can be made to have hearsay evidence excluded or included in a trial, which way to go? In criminal law, the crown is attempting to prove the charges against an accused person by leading evidence that proves beyond a reasonable doubt that the accused is guilty. Whereas, as a criminal defence lawyer, I am usually arguing against evidence being admitted under various evidentiary rules including the general rule against hearsay. One piece of crown evidence excluded from the trial is one less piece of evidence that can be used against my client! And yet, as Tip #4 illustrated, hearsay evidence could also be helpful to my client's case - in which case I argue that it should be admitted. I understand and can argue either side of an evidentiary legal issue, as needed!
Since arguments can be made to have hearsay evidence excluded or included in a trial, which way to go? In criminal law, the crown is attempting to prove the charges against an accused person by leading evidence that proves beyond a reasonable doubt that the accused is guilty. Whereas, as a criminal defence lawyer, I am usually arguing against evidence being admitted under various evidentiary rules including the general rule against hearsay. One piece of crown evidence excluded from the trial is one less piece of evidence that can be used against my client! And yet, as Tip #4 illustrated, hearsay evidence could also be helpful to my client's case - in which case I argue that it should be admitted. I understand and can argue either side of an evidentiary legal issue, as needed!
This article is general information and may not apply to you. It is not legal advice and should not be relied upon. Please call me for specific advice at 613.203.4874. Visit my main website by clicking here.