2. Statements Offered for Their Truth

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 105-107

Page 105

Only those statements offered for their truth offend the rule against hearsay. In other words, hearsay evidence is not identified by the nature of the evidence, but by the use to which the evidence is to be put. When an out-of-court statement is offered simply as proof that the statement was made, it is not hearsay, and it is admissible as long as it has some probative value. The person relating that the statement was made is in court and can be cross-examined. For example, take the following scenario:

The plaintiff fell on steps leading into the defendant’s store and sues in negligence for injuries caused. A delivery driver is called. The driver testifies that one hour prior to the accident a customer came into the store and told the manager, "Your steps are covered with ice and need to be cleared." The customer cannot be located.

Consider the use to which the delivery driver’s testimony is to be put. Knowledge of a potential hazard relates to what is reasonable or unreasonable in the circumstances. The customer’s statement amounts to a warning that a hazard existed. Its significance is that it was made and presumably heard by the manager. The delivery driver can be cross-examined on these points. Now if the statement were offered to prove that ice indeed covered the steps, it would be hearsay and, in order to test the truth of this statement, the customer would need to be cross-examined.

The question becomes one of relevancy: What relevant purpose does the statement have aside from its truth? If the statement has some probative value, it may be admissible for that limited purpose, though it is incumbent upon the trial judge to caution the jury as to its limited relevancy and to the fact that it is not admissible for its truth. Juries should not be left to determine the proper and improper uses of evidence.⁴In the example above, the jury would need to be told that the delivery driver’s statement was admissible as evidence of notice of an ice hazard, but was not admissible to prove that the ice hazard actually existed.

Relevancy is a broad concept, and little is to be gained by grouping or listing possible non-hearsay uses. Nevertheless, a few examples are

Page 106

helpful to illustrate the point. Take the case of Subramaniam v. Public Prosecutor.⁵The accused was charged with possession of twenty rounds of ammunition, an act that was contrary to an emergency decree to counter terrorism then in place in Malaysia. The accused...