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Hearsay Evidence – Learn the facts.

What is Hearsay Evidence?

I am sure that most people have heard the term “hearsay” when it comes to evidence.  Television shows, including Suits, makes hearsay a household term, but what does it mean?

Hearsay is an out of court statement that is offered to prove the truth of its contents.  The key to this definition is that hearsay, is a statement made “outside of court”.  This includes implied statements, which can be any assertion revealed through actions instead of words.  This occurs when an action is meant to communicate a message.  An example of that may be someone making a gesture implying physical violence or threat, or someone nodding their head to signal “yes” or “no”.

Recognizing Hearsay

Hearsay is meant to be excluded as evidence due to the fundamental concern that hearsay evidence cannot be tested for the truth of its contents.  Our adversarial system rests upon calling witnesses who can give evidence under oath.  This way they can be observed to analyze their demeanour and can be subject to cross-examination.  Statements made out of court simply cannot be tested.  In R v Starr, Justice Iacobucci accepted the following explanation for hearsay evidence:

“Hearsay statements are excluded from evidence in trials because of the difficulty of testing their reliability.  If a person who actually observed a fact is not in court, but a statement he made to someone is introduced in evidence, there is no way of inquiring into a person’s perception, memory, narration or sincerity.  His statement about the fact might be false because he misperceived it or did not remember it correctly, or he may have misled the person to whom it was made because he used words not commonly used, or he may have lied about it.  These factors, which determine the reliability of his statement, can only be tested if he is in the courtroom and subject to cross examination (R v Starr).”

Consider this following example to illustrate the need for cross examination:

Say for example someone is being prosecuted for drunk driving.  Bob, a witness, states that the passenger of the car driven by the allegedly drunk driver, said that the driver was drinking and was drunk.  The problem with this statement is that Bob is giving evidence of a statement that was made out of court for the truth of its contents; therefore, resulting in a hearsay statement.

Think of the importance of cross examination: a skilled lawyer would attack the validity of this statement by asking questions such as; What did you observe the accused drinking? How did you know that it was alcohol? Over what period of time did you see the accused drinking the alcohol? Why did you conclude that the accused was drunk.  Therefore, without this witness being able to testify.

Ask the Professionals

Are you unsure about hearsay statements? Are you concerned that someone is trying to use a hearsay statement against you?  Know your rights and trust the experienced professionals at Smordin Law.  We carefully analyze and dissect every statement made against you to be sure that your rights are not violated.  If you have any questions or concerns, call Smordin Law for your free consultation.

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Posted in Charter Rights, Criminal Law Procedure, What Should You Do If....

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