A Quick Guide to Hearsay

An understanding of the hearsay rule and its exceptions must begin with the type of evidence that is caught by the hearsay rule. It is not all out-of-court statements that are excluded. An out-of-court statement offered in court for proof of the truth of its contents is hearsay. Hearsay has been referred to as an “extrajudicial testimonial assertion”,¹ meaning only that it is an assertion made outside the courtroom, but offered as testimony in the courtroom, usually by someone other than the declarant. Having said that, even extrajudicial statements made by the testifying witness are hearsay when offered for the proof of the truth of the out-of-court statement.

What Out-of-Court statements are not caught by the hearsay rule?

The rule would not apply to evidence intending to show only that the statement was made. That is, if the report of an out-of-court statement is not offered as proof of its contents, but merely that the statement was made, the hearsay exclusion will not apply.

How does the Law Treat Hearsay evidence?

At law, the hearsay rule makes such evidence presumptively inadmissible.

Why is Hearsay evidence presumptively inadmissible?

A well-functioning court must safeguard against attributing to evidence anything more than its actual value. To avoid the dangers of unwarranted or excessive reliance on such evidence, the rules require that hearsay evidence be subjected to tests designed to scrutinize the statement and to tease out evidentiary weaknesses.The primary test for doing so is cross-examination. Where an out-of-court statement is offered in court by someone other than the maker of that statement², for proof of the truth of its contents, the opposing party is deprived of the opportunity to test it through cross-examination.

The problem with hearsay evidence is that the party introducing such evidence is endeavouring to prove assertions through a witness who has no actual knowledge of the facts or events.

In effect, the person who made the out-of-court statement is the witness, not the person testifying in the stand. The person in the stand is a mere conduit for what was allegedly heard. Hearsay is to be excluded because:

A person who relates a hearsay is not obliged to enter into any particulars, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his…absent author³.

What are the putative ‘dangers’ associated with Hearsay evidence?

The maker of the assertion may not be under oath, the demeanour of the maker cannot be observed by the trier of fact, and, most crucially, the possible weaknesses that can accompany the assertion cannot be tested through cross-examination. It is the test of cross-examination that is at the core of the hearsay rule. It is asserted, therefore, that absence of an opportunity to cross-examine the maker is the only essential test of significance under the hearsay rule.

Some courts and commentors observe that lack of the oath, where the hearsay statement is not made under oath, and the inability to confront the witness are dangers associated with hearsay evidence. Both should be seen as incidental. The irrelevance of the oath to a principled analysis of the hearsay rule can be demonstrated in a few ways. First, outof- court statements, even if made under oath, offend the hearsay rule. The central point, again, being the opportunity to test the statement through cross-examination. Second, the oath has little bearing on the flaws that accompany many assertions, even if it is accepted that the oath dissuades at least some witnesses from outright fabrication. Third, most traditional exceptions to the hearsay rule do not involve a requirement that the admitted assertion be made under oath. As for confrontation, the notion is entirely superfluous. Confrontation is part and parcel of cross-examination and, therefore, does not merit separate consideration.

Fundamentally, it is a core value of the civil and criminal justice system that possible omissions, mistakes, perceptual errors, opportunities for observation, capacity to observe, accuracy of assertions, completeness, distortion, biases, and untrustworthiness are best exposed through cross-examination. Moreover, absent cross-examination, the trier of fact is apt to attribute undue credit to possibly flawed assertions.

The power of cross-examination as the essential tool capable of filtering out testimony unworthy of credit is at the very core and essence of the hearsay rule. It is only through this interrogation that factors that undermine the testimony – whether concerned with perception, omission, motivation, memory, or fabrication – can be exposed.

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¹ Evidence in Trials at Common Law, volume 5 (1974), by John Henry Wigmore, at para 1361.

² Although even out-of-court statements made by the testifying witness constitute hearsay and are presumptively inadmissible. Conduct may amount to hearsay as well.

³ Evidence in Trials at Common Law, volume 5 (1974), by John Henry Wigmore, at para 1362, page 6, in reference to Coleman v. Southwick, 9 Johns. 45, 50 (N.Y. 1812).