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The principles governing the admissibility of evidence in a criminal trial disallow certain types of unreliable evidence, potentially contaminated, and ones that could bias the jury. Of these, hearsay evidence typically doesn't make the cut, unless it fits into specific exceptional categories. In legal terms, hearsay is a witness's recounting of a statement made by a non-testifying third party.
Testifying about a statement that one personally made to someone else outside court, such as "I told Joe that I was going to the store" isn't hearsay and can be used as evidence. But if the evidence is about what another person told the witness, for example, "Mary told me that she saw Bill running from the scene of the crime", it gets viewed as hearsay. It is important to note that not every such testimony is hearsay.
A hearsay statement becomes inadmissible when the objective is to establish the truth contained in the statement itself. On the other hand, it isn't hearsay or inadmissible if it's about proving that a certain statement was indeed made, rather than proving the truth of it. Thus, the definition of hearsay comprises "an out-of-court statement offered for the truth of its contents". If the purpose of the out-of-court testimonial isn't to establish the truth of its contents, it doesn't get classified as hearsay.
To illustrate, let's imagine a scenario where Jane confesses her affair to Bob. While Bob can't use this confession in court to prove that Jane is indeed involved in an extramarital affair, he can testify that she did confess to an affair if this fact is pertinent to the case.
There are numerous situations where the mere fact of a statement being uttered can be important for a case. Consider, for instance, a domestic assault case involving Bob and Jane, where Bob is trying to explain his anger by referring to Jane's confession of an affair. The truth of Jane's affairs is not the issue here, but the fact that she made the statement is pertinent as it may help to understand Bob's actions.
It is irrelevant whether Jane was telling the truth or not. The key point here is that the statement was made, which might provide crucial context to Bob's actions. So in such cases, an out-of-court statement is admissible and isn't considered hearsay as it isn't brought forth to establish the veracity of its content.
Hearsay is traditionally excluded as it is deemed highly unreliable – it can stem from gossip, rumours, fear-mongering or personal opinions – none of which can form a sturdy base for a criminal conviction. It is deemed better to have a live witness in court to testify under oath, offering them an observation opportunity and a cross-examination prospect.
When a statement is made outside of a courtroom setting, it is generally free of the control of an oath. Consequently, there might be little emphasis on truthfulness at the time of making the statement. The court finds the presence of oath, with the lurking risk of perjury prosecution if lies are told, a crucial checkpoint against dishonesty. This is absent in out-of-court interactions and communications, making them likely unreliable. The courtroom provides an opportunity to observe the witness and detect any physical signs of falsehood. Additionally, witnesses can be cross-examined to verify their truthfulness, a facility that out-of-court statements don't offer, thus landing them on the unreliable list.
The law has several exceptions carved out to the hearsay rule. Admissibility through these exceptions, called the “categorical approach", is contingent upon fitting the statements into one of the categories. The exceptions encompass Declarations as to Mental or Emotional States, Spontaneous Utterances, Statements Against Interest and Ante Mortem Exceptions among others.
The first category permits hearsay evidence concerning an individual's mental or emotional state, given the scarcity of such information. However, it only applies when the original speaker can't testify themselves. The Spontaneous Utterances exception includes statements made instantly and authentically without any chance of concoction or distortion. Statements Against Interest, made with personal knowledge and against the speaker's own interests, is another exception, assuming that a person won't lie to their detriment.
On the other hand, the Ante Mortem Exception allows references to statements made by a murder victim about the accused prior to their death. Since these statements can aid the court and the deceased can't testify, they are admissible. However, such statements should be treated with caution, considering both the victim's and the witness's identity and motivations.
The exceptions to the hearsay rule are not always free of weaknesses. For example, the Ante Mortem Exception suffers from issues akin to prejudicial treatment, as the categorical approach primarily focuses on classifying the statements rather than considering their utility in chalking out the crime's events. Consequently, the categorical exception was superseded by the Supreme Court of Canada in 1990, in favour of the "principled approach."
In the case of R. v. Khan, a new method was introduced for determining whether hearsay statements should be admitted. A special hearing known as a “voire dire” is held, where arguments from both sides about the statement's admissibility are heard. Under the Khan test, if the hearsay evidence is proven to be necessary and reliable, it will be admitted under the principled exception to the rule against hearsay.
The party seeking to admit the statement in question has to convince the court that on balance, the statement should be admitted under the Khan test. If the judge agrees and does admit the said statement, the credibility and reliability of that piece of evidence will later be evaluated by the jury, along with all other evidence, to decide whether to believe the statement.
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When it comes to the principled approach, a two-step test was laid down by the Supreme Court in Khan. The first step requires the court to determine the necessity of using the out-of-court statement as evidence. If there is an alternative way to admit this evidence that includes traditional safeguards such as oath, observation, and cross-examination, the court will not allow the hearsay form of the evidence.
This necessity typically arises when the person who made the original statement is either dead, missing from the jurisdiction without the possibility of being compelled to testify, or is mentally incompetent. The court might find it necessary to admit hearsay evidence during situations where it anticipates difficulty in obtaining evidence of the same value from the same or different sources at the time of the trial.
The Khan case provides an example of this, where a child victim of a sexual assault was too traumatized to give testimony in court. In this case, the court permitted a statement by the child to her mother shortly after the incident.
In the second step of the Khan test, the court is required to ascertain the reliability of the hearsay evidence. This originally involved examining if there were "circumstantial guarantees of trustworthiness" at the time the statement was made. This meant the court was considering circumstances that would compensate for the fact that the original speaker was unable to give testimony in the courtroom under oath, observation, and subject to cross-examination.
Some factors indicating the statement's reliability include the motive of the speaker to lie or not, absence of intoxication, personality or character of the speaker, circumstances and timing of the declaration, and whether the declaration was spontaneous or prompted. Other factors include whether the statement was made under circumstances where the speaker felt obliged to tell the truth in the same way as giving an oath.
Initially, the court didn't examine the substance of the statement or whether it accorded with other evidence presented at the trial. But this changed with the 2006 case of R. v. Khelowan when the Supreme Court of Canada proposed that judges could scrutinize all factors, including the substance of the statement and the surrounding evidence to judge whether the statement is reliable and can be admitted as an exception to the rule against hearsay.
Thus, if the court establishes that admitting the hearsay form of the evidence is necessary and the evidence is reliable, it will proceed to admit the hearsay evidence under the principled exception to the rule against hearsay.
