10. Spontaneous Statements (Res Gestae)

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages173-180

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"Res gestae," literally defined, means the "facts surrounding or accompanying a transaction." Unfortunately, in the words of Wigmore, the phrase is "not only entirely useless, but even positively harmful."220It is harmful because it invites tying admissibility to a "transaction," which creates an unprincipled limitation. It is useless because actually there is no specific res gestae exception; rather, the term embraces a number of distinct hearsay exceptions. These exceptions include statements of present physical condition, statements of present mental state, excited utterances, and statements of present sense impression.

The better phrase to use to encompass these exceptions is that of "spontaneous statements": the common principle underlying each of these exceptions is that reliability is founded on the spontaneous making of the statement before there is time for concoction. Necessity is based on expediency, "in the sense that there is no other equally satisfactory source of evidence either from the same person or elsewhere."221

Accordingly, unavailability of the declarant is not a prerequisite; the declarant may testify, and the spontaneous statement may also be admitted into evidence.

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10. 1) Statements of Present Physical Condition

Where a person claims to be experiencing a particular physical condition, the statement containing that claim is admissible but only to prove that the person was experiencing the condition at the time and to establish its duration.

This exception is confined to natural expressions that usually accompany and provide evidence of an existing injury or illness. Consider the following situation:

A homeowner involved in landscaping his yard shovels and carts load after load of dirt. He sits down to rest and then complains of severe back pain.

In the circumstances, the homeowner’s "statement of pain" is admissible.

The homeowner goes to see his doctor. During the examination, the homeowner grimaces and cries out whenever the doctor touches his back area.

This "statement of pain" too is admissible within the present exception, provided that the duration of the injury is relevant.

During the examination the doctor asks, "How long have you been like this?" and the homeowner responds, "For two days." The doctor also asks, "How did this happen?" and the homeowner responds, "I hurt my back working in the yard carting dirt."

The statement of "past" pain is not admissible; nor is the homeowner’s statement as to the cause of the pain. Neither of these statements are spontaneous reactions to a physical condition. As the British Columbia Court of Appeal, after a thorough examination of this exception, concluded: "The hallmark of such statements is their spontaneity. The common law exception for such statements rests on the circumstantial guarantee of reliability that may be presumed from the spontaneous utterance as to the declarant’s bodily sensation."222In the United States, statements of "past" pain and of its "cause" that are made for purposes of medical diagnosis or treatment are admissible under a specific hearsay exception.223The reliability of such

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statements is grounded on the assumption that persons seeking medical care would provide accurate information related to their treatment. The Ontario Court of Appeal in R. v. Czibulka did not accept this position; it held that statements as to the cause of a condition are inadmissible under this exception.224

10. 2) Statements of Present Mental State

Where a person describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where the state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion.

Many statements going to a person’s state of mind are not hearsay at all. They are admissible, not for their truth, but for the fact they were said. Only where the statements as to state of mind are going in for their truth is there need to resort to the hearsay exception. Therefore, "the first question to be asked is whether the intended use of the evidence requires that the trier accept as true the declaration of mental state."225

Doherty J., in an excellent summary of the law, explained this distinction in the following terms:

If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken.226For example:

In a murder case the defence is that the victim killed herself. She died of a drug overdose. A few weeks prior to her death she made the following statements:

1) "No one likes me; no one would miss me."

2) "I intend to kill myself."

The defence seeks to have these statements admitted into evidence.

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Statement 1 is not being tendered for its truth; it is admissible as "original" evidence from which it may be inferred that she was depressed and potentially suicidal. Statement 2 is being admitted for its truth; it is an "explicit" statement of her intention and must be admitted under this hearsay exception. The statement also affords circumstantial evidence that she did in fact carry out her intention and kill herself. Statements of intention are not admissible to show the state...

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