Hearsay: Specific Exceptions

Declarations Against Penal and Financial Interest; Dying Declarations; Statements of Present and Future Intentions

Declarations Against Penal/Financial Interest

Are different than admissions by a party litigant

By definition, these are utterances by third parties, non-party litigants

They are classically acceptances of responsibility by a third party for the matters at issue before the Court, reported by a direct witness to the acceptance/utterance

Necessity: the necessity for admission of such evidence is the “unavailability” of the declarant

Reliability: the reliability of such evidence is said to lie in the fact that a person would not make such an admission unless it were true

Declarations Against Pecuniary/Proprietary Interest

A statement made by a person since deceased stating a fact against his pecuniary or proprietary interest is admissible as proof of the matters stated.

General Requirements for Both Exceptions

(1) The declaration is a statement of facts of acts done by the declarant, not his statement of what someone else did;

(2) The declaration must be against his interest at the time he so declared (not just possible or contingent);

(3) The declarant must know at the time his statement is made that it is against his interest.

Requirements, penal interest:(1) The declaration must be made under

circumstances where the declarant realizes that by doing so, he places himself in jeopardy

(ie. to such a person, and in such circumstances that he is actually placing himself in jeopardy; the actual creation of such a risk)

Requ’ts Continued

(2) By so declaring, the declarant knows that penal consequences are imminent.

(3) The declaration sought to be entered will be examined in its entirety. If on the whole, it is to the declarant’s favor, it shall not be admitted.

(4) The TOL can examine the circumstances surrounding the declaration, such as whether there is a nexus between the declarant and accused, and whether there are other circumstances connecting the declarant with the crime.

Requ’ts Continued

(5) To preclude his testimony, the declarant must be dead, insane, gravely ill, or outside the jurisdiction. The declarant must be “virtually unavailable.”

(6) In criminal matters, this exception may only be employed to exculpate the accused, not inculpate: Lucier v. the Queen, [1982] 65 C.C.C.(2d) 150 (S.C.C.)

O’Brien (1978) SCC

O’Brien and a co-accused were jointly charged with trafficking

O’Brien arrested and convicted co-accused fled the country; charges stayed against

co-accused After O’Brien’s conviction, the co-accused returned

and told O’Brien’s counsel that he was the one responsible, and would testify

Unfortunately, he died before the scheduled hearing

O’Brien continued

O’Brien’s counsel provided the Affidavit on appeal (fresh evidence) as to the conversation

BCCA: appeal allowed, acquittal entered SCC: restored conviction Statements were not declarations against

penal interest

O’Brien continued

Statements made with no apparent jeopardy to co-accused, his charges were stayed, he made the comments in the confines of a lawyer’s office, he asserted his CEA s. 5 right (statements can’t be used against him in other proceedings)

Dying Declarations

Necessity: the declarant is dead

Reliability: making a statement knowing you are going to meet your maker is seen as replacing the requirement of an oath

Classic Use

The victim of a homicide identifies his/her attacker to others before death. The evidence of identity is called through direct witnesses to the statement, and where it satisfies the other requirements, is admitted for the POTOC.

Requ’ts: Dying Declaration

(1) At the time of the declaration, there must be, on the part of the declarant, a settled, hopeless expectation of imminent death.

(2) The subject-matter of the trial, and the dying declaration, must be the circumstances surrounding the death of the declarant.

Notes on Dying Declarations

The requirement of a settled, hopeless expectation of death need not be stated by the deceased, and can be inferred from the circumstances – e.g. injuries to declarant and behavior of declarant.

The declarant must believe he is in the process of dying. If he does not, even if a physician would disagree, this exception is not made out.

Dying Declarations: Notes

Medical confirmation of the reasonableness of the declarant’s state of mind as to likelihood of death at the time of the declaration is admissible

Post-declaration, if the declarant entertains a hope of recovery, his original statement is still admissible, assuming he had the requisite hopeless expectation at the time of the declaration

Dying Declaration: further notes

It is not a requirement of admissibility that the declarant actually die contemporaneously with his statement. Only his state of mind at the time of the statement is relevant. The exception subsumes, however, that death occurs prior to the trial.

Dying Declaration: Notes

It is a requirement of admissibility that the statement be one which could have been given by the declarant should they have survived. IOW it is direct evidence as to identity or the circumstances of their death. If the statement is nothing more than their speculation or opinion as to their killer or cause of death, said evidence is not admissible.

Dying Declarations: Notes

Declaration can be edited for irrelevant, prejudicial content.

No requirement the declaration be in any form, ie. in writing, by gesture or conduct.

Dying Declarations: TOF

The TOL determines admissibility applying the exception’s requirements.

Just as with any hearsay exception, the TOF can consider the absence of oath, cross and demeanour in assigning weight. The TOL should so caution the TOF, and opponent counsel should request such a caution if not given.

TOF continued

It is also open to the TOF to consider all circumstances surrounding the giving of the declaration, including the declarant’s state of mind at the time of the declaration.

As with any evidence admitted under a hearsay exception, the TOF may use the declaration for the proponent, against, or a combination of both.

Exception: Statements of Intention

Necessity: the declarant is unavailable to testify

Reliability: ???

Used to prove that the declarant (deceased) acted in accordance with their intention:

- went to the stated/planned location where he met his death (Workman and Huculak)

- followed their announced intention to leave their spouse (explains their dead body found shortly thereafter)

- has been found to be relevant to motive, identity

R. v. R. (P.) 58 CCC(3d) 334 (Ont. H.C.)

Reliability: “there is some circumstantial guarantee of trustworthiness attaching to the utterances as there is no suggestion that the deceased had reason to misrepresent her state of mind when she made these various statements to her sister and other close associates.”

Relevance

“… the deceased’s various mental states as described above make it more probable that her relationship with Mr. P was unsatisfactory to her, that she determined to end it, and that she, in fact, did end it on what, in her mind, was a permanent basis … These facts, in turn, make it more probable that Mr. P had the motive ascribed to him by the Crown …”

Admission

“Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as an exception to the hearsay rule.”

TOF can use it ...

“Evidence of the deceased’s state of mind may, in turn, be relevant as circumstantial evidence that the deceased subsequently acted in accordance with that avowed state of mind. Where a deceased says, “I will go to Ottawa tomorrow”, the statement affords direct evidence of the state of mind – an intention to go to Ottawa tomorrow – and circumstantial evidence that the deceased in fact went to Ottawa on that day. If either the state of mind, or the fact to be inferred from the existence of the state of mind is relevant, the evidence is receivable subject to objections based on undue prejudice.”

“An utterance indicating that a deceased had a certain intention or design will afford evidence that the deceased acted in accordance with that stated intention or plan where it is reasonable to infer that the deceased did so. The reasonableness of the inference will depend in a number of variables including the nature of the plan described in the utterance, and the proximity in time between the statement as to the plan and the proposed implementation…”

Note

The evidence is not admissible to show the state of mind of persons other than the declarant, or to show that persons other than the declarant acted in accordance with the declarant’s stated intentions.

The evidence is also not admissible to show that past acts or events referred to in the utterances occurred.

Prejudice

“Prejudice can refer to several things. In the context of this case, it means the danger, despite instructions to the contrary, that the jury will use the evidence of the deceased’s utterances for purposes other than drawing inferences as to her state of mind and as to her subsequent conduct. In particular, the jury may infer from some of the utterances that Mr. p was a tyrannical person, obsessed with controlling the deceased even to the extent of engaging in illegal and bizarre conduct. From that, they may infer that he is the sort of person who would kill someone who dared challenge his authority … This line of reasoning, while not illogical, is not permitted.”

Prejudice

The utterances can be excluded, edited, and proceed to the TOF with a specific warning for third ground admissibility reasons.

Workman v. Huculak (1962) Alta. C.A.

     Frank Willey was a professional golfer at a golf course in Edmonton. Workman was a bookkeeper for a home builder named Siperko. Huculak was a friend and associate of Workman. Willey disappeared on the evening of April 19, 1962.

There was a considerable amount of evidence of a close association between Workman and Willey's wife over a period of many months before April 19, 1962.

Paul Osborne testified that on April 18, 1962, Workman stated to Osborne and Huculak that he wanted Osborne and Huculak "to work this guy over". The three met next morning at the Riviera Hotel in Edmonton, Workman arriving in a Pontiac car. Workman then stated that he "wanted him knocked off, he wanted him killed". "Workman was saying he wanted it to look like an accident, knock this guy out, take him out in the country and hit him with another car". Workman said he was to be knocked out at a partially-built house to which they were going to lure him. Osborne refused to take any part in the affair. The proposed victim was not named.

On the morning of April 20, 1962, Siperko returned to a partially-built house he was constructing in Edmonton at 9904 -- 73rd Street, to which he had delivered a load of plywood at 5:30 p.m. the previous evening. He found pools of blood and bloodstains which were proven to have been human blood which were not there when he left on April 19th. Substantial amounts of blood were found. Workman and Huculak had visited this house sometime before. On the afternoon of April 19th, Workman walked around both floors of the house and said to the painter Schatkowski that he had heard they worked late hours.

The theory of the Crown was and is that Workman planned to kill Willey and that for this purpose he was to be lured to the house mentioned.

Willey's assistant Cairns told of a request by Willey to him on the afternoon of April 19th to purchase a set of women's golf-clubs. He bought them, picked out two golf-bags and placed the clubs and the bags in the back seat of Willey's car, described as a 1960 Oldsmobile hardtop. Cairns testified that Willey mentioned that he had received a phone call from a person from Vancouver who had just moved to Edmonton and had purchased a house "up on the hill". Willey was to deliver the clubs that evening. The Riverside course where Willey worked was in the river valley. Willey went home for his supper. He left before 9 o'clock in the evening in his Oldsmobile car, which had a brown roof and light body. He never returned.

His car was found, abandoned and locked, a few blocks from Siperko's house. The golf-clubs and bags were in it. Human blood was found on five of the eight golf-clubs.

Counsel for each accused argued with vigour that the statements of Frank Willey to his assistant Cairns relating to the telephone call and the purchase and proposed delivery of the golf-clubs were not admissible as part of the res gestae, and furthermore, that if such evidence was admissible, it was improperly used as evidence of the truth of Willey having received the telephone call.

Counsel for the Crown in addressing the jury, after having referred to the alleged plan of the accused Workman, said, "In pursuance of this plan Willey receives a telephone call and the telephone call requests that he deliver a set of golf clubs, it states his name was given to the caller when in Vancouver, the clubs are not to exceed $225 and he wants them tonight by reason of a celebration". So it is clear that the Crown used the statement of Willey to establish the fact that he had received a telephone call.

“In my view, the statements of Willey to his assistant were receivable in evidence as truth of the contents, as real evidence and not merely a reported statement, and as relevant in considering the mental state and conduct thereafter of Willey.”