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NCJ Number: 77587 Find in a Library
Title: Hearsay Evidence
Journal: Osgoode Hall Law Journal  Volume:16  Issue:2  Dated:(October 1978)  Pages:407-443
Author(s): E G Ewaschuk
Date Published: 1978
Page Count: 37
Format: Article
Language: English
Country: Canada
Annotation: The treatment of hearsay evidence by the Law Reform Commission of Canada in its Federal Evidence Code, the Report of the Law of Evidence by the Ontario Law Reform Commission, and the U.S. Federal Rules of Evidence are compared and contrasted; case law is highlighted.
Abstract: Hearsay is usually taken to mean that witnesses cannot testify that they have heard someone else say something out of court. The rationale for excluding hearsay evidence as expressed in R.V. Christie (1914) is related to two dangers: the danger that the declarant has not pledged an oath as to the truth of the statement and the lack of opportunity to cross-examine the declarant. Nevertheless, many exceptions to the general hearsay rule have been judicially and legislatively created in certain circumstances of necessity, such as when the declarant is dead and no other evidence is available. In comparing the treatment of hearsay evidence in the three cited works, it becomes clear that all recognize that the present rules regarding hearsay are restrictive and require liberalization. In an attempt to resolve problems with the present rules, the Ontario approach results in the most conservative treatment. The American approach is midway along the spectrum, whereas the Law Reform Commission of Canada's Federal Code is the most liberal. All three works retain the present exclusionary rule. They differ in their treatment of several issues, such as the admissibility of previous testimony. The fundamental decision that must be made in any situation in which the court is called upon to rule on whether an item of evidence is hearsay or nonhearsay is for what purpose the evidence is being tendered. Several aspects of the American and Canadian codes, particularly the business records provisions, have proved beneficial to liberalization of the hearsay evidence laws. In contrast, the Ontario Law Reform Commission's Draft Evidence Act is a piecemeal reaction to numerous defects in the present law. The article includes 214 footnotes.
Index Term(s): Canada; Federal Code; Hearsay evidence; Judicial decisions; Law reform; Rules of evidence; Testimony; United States of America; Witnesses
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