You may have heard the term “hearsay” before. In criminal proceedings, “hearsay” refers to testimony in which the witness is relaying information they received from a third party, and the statement allegedly made by that third-party is being offered as evidence to support either the prosecution or defence. For example, if a witness testifies that “Daniel told me that he saw the defendant drink six beers before he drove away from the bar,” and that testimony is offered to support the Crown’s impaired driving case, that is hearsay and likely would be inadmissible.Hearsay is generally inadmissible because of its second-hand nature and the fact that the source of the hearsay evidence cannot be cross-examined. However, there have long been exceptions to this general rule, and many kinds of hearsay evidence are oftentimes accepted in Canadian courts. These include business records, sworn previous testimony, and statements that are part of public or government documents.
Reliability and Necessity
In recent years, however, the Supreme Court of Canada has broadened the range in which prosecutors might be able to seek admissibility of hearsay evidence. Starting with its R. v. Kahn ruling in 1990 and in several subsequent determinations, the court has concluded that hearsay evidence can be used in court if it is found to be both reasonably reliable and necessary to the case at hand—even though it’s still hearsay.
Challenging Hearsay Evidence
Even though there is no opportunity to cross-examine the source of the hearsay information if admitted, there nevertheless may be openings for defence lawyers to challenge it in other ways. Perhaps an examination of other statements or transcripts related to the source of the hearsay statement might reveal bias or lack of truthfulness. Or maybe the circumstances surrounding the hearsay statement can be challenged. Additionally, defence lawyers can still raise questions about it through cross-examination of the person in possession of the second-hand information.
Hearsay evidence can pose a genuine problem for defendants, and a good defence lawyer will fight against the admissibility of any hearsay evidence that may hurt their client’s case. Even if a court allows hearsay testimony, an experienced criminal defence lawyer can still find ways to reduce or mitigate its impact.
Since 1996, the law firm of Mitch Engel, Barrister & Solicitor has been providing clients throughout the Toronto, Oshawa, Brampton, and Mississauga areas with top-level criminal defence representation. With an exclusive focus on criminal defence, he has keen insight into successful defence strategies and is passionate about helping his clients achieve the best possible resolution to their matters. Call Mitch Engel at (866) 761-7077 to get the legal advice you need to reclaim your life.
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