Hearsay Legal Definition:

Evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them.

Related Terms: Confrontation Clause , Double Hearsay , Dying Declaration , Past Recollection Recorded , Present Memory Revived , Affidavit

From The Law of Evidence in Canada (2nd ed., 1999, p. 173) by the late John Sopinka, hearsay was described as:

"Written or oral statements or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein."

In the United States, hearsay is defined in a federal statute1 as:

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

In this, there is no deviation from the time-honoured rule religiously followed by the judiciary. In US v Caraballo, Justice Marcus wrote:

"Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless the statement ... falls into one of the hearsay exceptions."

For example, if Bob heard from Susan about an accident that Susan witnessed but that Bob had not, and Bob attempted to repeat in Court Susan's story as evidence of the accident, it could be objected to as hearsay.

The basic rule, when testifying in court, is that you can only provide information of which you have direct knowledge.

Hearsay evidence is also referred to as second-hand evidence or as rumor or even gossip.

The evidence may be admissible to show that another person's statement was made, but not of the truth of what was contained therein. You are able to tell a court what you heard, to repeat the rumor, and testify that, in fact, the story you heard was told to you, but under the hearsay rule, your testimony would not be evidence of the actual facts of the story but only that you heard those words spoken.

Thus, this from Judge Batchelder:

"As a general rule, hearsay is not admissible in federal courts. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). A statement offered as evidence of the bare fact that it was said, rather than for its truth, is not hearsay."

In R. v Abbey 1982 2 SCR 24, the Supreme Court of Canada justified the rule against hearsay as follows:

"The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements of facts presented."

In R v Starr, Justice McLachlin of Canada's Supreme Court wrote, in dissent:

"In my view, the following principles govern the admissibility of hearsay evidence: 1. Hearsay evidence is admissible if it falls under an exception to the hearsay rule; 2. The exceptions can be interpreted and reviewed as required to conform to the values of necessity and reliability that justify exceptions to the hearsay rule; 3. Where the evidence is admissible under an exception to the hearsay rule, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value; 4. Where evidence is not admissible under an exception to the hearsay rule, the judge may admit it provided that necessity and reliability are established.

"In short, the common law exceptions to the hearsay rule remain the law, as interpreted and updated to conform to the twin requirements of necessity and reliability.

"Additionally, evidence not falling within an exception may be admitted if the requirements of necessity and reliability are established. This retains the certainty and predictability associated with the common law exceptions to the hearsay rule and avoids the need to hold a voir dire when evidence falls within an established exception. At the same time, it permits the exceptions to evolve and evidence outside the exceptions to be admitted where necessity and circumstantial guarantees of reliability exist.

"As with all evidence, the trial judge has an overriding discretion to exclude the evidence if its prejudicial effect outweighs its probative value."

In R v Starr, for the majority, Justice Iacobucci wrote of a principled approach to hearsay issues:

"Hearsay evidence may be admissible, notwithstanding the inapplicability of the categorical exceptions on the facts of the case, provided the criteria of necessity and reliability set out in R. v. Khan are met."

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