Hearsay

• Author: David M. Paciocco/Lee Stuesser
• Pages: 103-113

103

Cha pter 4

HEARSAY

Hearsay is an out-of-court state ment that is offered to prove the

truth of its contents. The essential def‌ining features of hearsay are:

1) the fact that an out-of-court state ment is adduced to prove the

truth of its contents and 2) the absence of a contemporaneous op-

portunity to cross-examine the declarant.

An out-of-court statement includes previous statements made

by a witness who testif‌ies.

An out-of-court statement also includes an “implied state-

ment,” which is any assertion revealed through actions and not

words. Where the actions are intended to communicate a message,

they are treated the same as a verbal or a written statement. Where

the actions are not intended to communicate a message, courts are

divided as to whether or not these statements fall under the hear-

say rule.

1. reCOGNIZING hear SaY

The rule i s simple to state: Absent an exception, hearsay evidence is

not admissible. In other words, hearsay evidence is presumptively in-

admissible. The diff‌iculty lies in identify ing what is or is not hearsay.

The Supreme Court of Canada has told us that the e ssential def‌ining

features of hearsay are: 1) the fact that an out-of-court statement is ad-

duced to prove the truth of its contents and 2) the absence of a contem-