# Hearsay Decision Tree Systematic analysis for any statement you want to introduce or challenge. --- ## Step 1 — Is It Hearsay At All? ``` Question: Is the statement being offered for the TRUTH of what it says? YES → potentially hearsay, continue NO → not hearsay, admissible for its non-hearsay purpose (e.g. to show the statement was made, effect on the listener, state of mind of the declarant) ``` ### Common Non-Hearsay Purposes - **To show the statement was made** (e.g. defamation — the words are the fact in issue) - **To show effect on the listener** (e.g. why the listener acted a certain way) - **To show the declarant's state of mind** (not for the truth of what they believed but the fact they held the belief) - **To show operative words** (e.g. contract formation — the offer and acceptance) - **Verbal acts / verbal parts of acts** (words that themselves have legal effect) If the statement fits a non-hearsay purpose, admit for that purpose only. The court may give a limiting instruction. --- ## Step 2 — Traditional Exception? ``` Does the statement fit a traditional hearsay exception? Business records | Public records | Present intention | Against interest | Dying declaration | Prior judicial proceeding | Res gestae | Bodily/mental state | Ancient documents YES → presumptively admissible, but principled overlay applies Continue to Step 4 to verify reliability NO → continue to Step 3 ``` --- ## Step 3 — Principled Approach Even without a traditional exception, hearsay may be admitted under the principled approach. ### Necessity ``` Is the evidence otherwise available in a form that permits cross-examination? Declarant available and competent → NOT NECESSARY (unless cross-examination would be practically futile) Declarant unavailable (deceased, incompetent, refuses, beyond compellability) → NECESSITY MET Cross-examination futile (e.g. young child, cognitive impairment) → NECESSITY MET ``` ### Reliability Threshold reliability must be established. Two paths (Khelawon): **Path A — Procedural Reliability** ``` Do the circumstances of the statement provide adequate substitutes for cross-examination? Factors that support: - Statement made under oath - Video-recorded - Contemporaneous with events - Opportunity for prior cross-examination - Declarant available for cross on the statement's making ``` **Path B — Substantive Reliability** ``` Is the statement so trustworthy that cross-examination would add little? Factors that support: - Made in circumstances that negate motive to fabricate - Against declarant's interest - Corroborated by independent evidence - Made shortly after events, without opportunity for reflection - Consistent with contemporaneous conduct ``` Either path suffices. Both together strengthen the case for admission. --- ## Step 4 — The Principled Overlay on Traditional Exceptions Even where a traditional exception applies, the court may exclude if: - The circumstances of the specific statement fail the principled test - The reliability rationale for the exception doesn't apply to this statement - Admission would be manifestly unfair *Starr* 2000 SCC, *Khelawon* 2006 SCC. --- ## Step 5 — Voir Dire For contested hearsay, a voir dire may be needed to determine admissibility. In administrative proceedings, the equivalent is often handled through weight rather than formal voir dire. The party proposing to adduce the hearsay bears the burden on the voir dire. --- ## Step 6 — Weight (If Admitted) Even if admitted, hearsay evidence may be given limited weight. Factors: - Whether the declarant is available for observation - Whether cross-examination would test the statement - Corroborating or contradicting evidence - Circumstances of the statement's making - Nature of the issue being proved Threshold reliability (for admission) is a lower bar than ultimate reliability (for the trier of fact's assessment of weight). --- ## Special Categories ### Statements by Party Opponents Statements made by a party, offered against that party by the other side, are traditionally treated as admissions rather than hearsay. The rationale is that the party can't complain about being confronted with their own statements. Admissions of party opponents are generally admissible. ### Prior Statements of Testifying Witnesses - **Prior inconsistent statements** — admissible for impeachment; may be admitted for the truth under B(KG) if reliability requirements met - **Prior consistent statements** — generally inadmissible except to rebut recent fabrication or in narrow other categories ### Statements Concerning Deceased Persons Where the declarant is deceased, necessity is presumptively met. The reliability inquiry is where the analysis focuses. ### Statements by Children Historical caution about children's testimony has been substantially modified. Khan (1990) established that children's out-of-court statements may be admitted where the principled test is met. ### Business and Public Records Well-established traditional exceptions with statutory underpinnings. Rarely contested at admission stage but sometimes at weight. --- ## Administrative Proceedings At the RTB and most administrative tribunals: - Hearsay is admissible if relevant - The decision-maker weighs it based on reliability - Do not treat "admissible" as "reliable" — administrative decision- makers give little weight to unreliable hearsay - On judicial review, over-reliance on unreliable hearsay may be challenged as procedural unfairness or unreasonableness --- ## Objection Vocabulary If objecting at a hearing: - "Objection, hearsay" — the basic objection - "Objection, hearsay, no exception applies" — where you want to force the proponent to identify a basis for admission - "Objection, hearsay, and the principled test is not met because [X]" — where you want to make a substantive point If responding: - Identify the traditional exception (if any) - State that necessity and reliability are met - Offer to conduct a voir dire if the court wishes