What is “Hearsay”?

by John McKiggan

Hearsay is a term lawyers use to describe statements made by someone who is not in court to testify about what they heard. For example, if you were testifying in trial, you could say: “I saw the car drive through the read light” because you are testifying about something you actually saw happen.

On the other hand, if you said: “Bob told me that he saw the car drive through the red light” that would be hearsay, because Bob isn’t in court to testify about what he saw.

Inadmissible Evidence

Hearsay is not admissible in court because the person who made the statement isn’t available to testify or be cross examined. Also a judge or a jury hearing the evidence can’t see the witness to judge their credibility.

Exceptions to the Rule

Over the years judges in various cases have allowed exceptions to the hearsay rule to the point where there were literally dozens of generally accepted situations where hearsay could be admitted.

The Supreme Court of Canada tried to make some sense of the hearsay in a case called R. v. Smith. In Smith the Supreme Court of Canada ruled that a judge could admit hearsay when two criteria are met:



Necessity can be established when there is no other way for the evidence to be put before the court. For example, the original witness who made the statement has died.

Reliability is established when the court is satisfied that, given the circumstances that existed at the time the statement was made, the statement is likely to be reliable. For example, a statement made by a witness to the police in the course of a criminal investigation.

Before you testify at trial your lawyer will go through your evidence with you and explain what evidence will be admissible and what evidence will not be admissible because it is hearsay.

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