Principled Exception to Hearsay Rule -- Is Proof of Reliability Still Necessary?

Under the principled exception to the rule against hearsay evidence may be admitted if it is necessary and it bears circumstantial indicia of trustworthiness.

Necessity is seldom a significant problem in analyzing a principled exception case -- the question 'is the evidence of the maker of the out of court statement available?' is fairly straightforward.

Trustworthiness is more problematic and, to this author's view, the test has gone from an affirmative obligation on the proponent of the evidence to show that there is some special reason to believe the out of court statement reliable to an obligation on the opponent to show there is good reason to doubt the reliability of the statement. A huge difference in process and admissibility is hidden because the formal words have not changed even though the test has.

Yesterday's decision in R. v. S.S., 2008 ONCA 140 continues this trend. The key issue was the admissibility of certain out of court statements. Necessity was a given -- the out of court speakers had been intimidated into refusing to testify -- but trustworthiness was a live issue.

The Court ruled the statements admissible largely because there was no reason to doubt they were reliable.

In the instant case, the decision was clearly sensible. It may well be argued that hearsay should be admitted (with allowances as to weight) if necessary and not unreliable; in fact, this author says that is the functional test. Regardless, read the following passage and decide if the test is reliability or absence of reason to doubt reliability.

[26] In holding that Mr. Cerdas' statement was sufficiently reliable to justify its admissibility, the trial judge referred to several factors, including the following:

· The statement was made very soon after the events described in the statement;

· Mr. Cerdas had no motive to lie to the police about being robbed or the particulars of the robbery, or to falsely implicate the appellants;

· Mr. Cerdas, because of his personal experience (two prior convictions for obstructing justice), was aware of the consequences of lying to the police even though he was not cautioned about those consequences on this occasion;

· The police officer who took the statement knew nothing about the events referred to in the statement. That officer, and the police in general, had no suspects and no reason or ability to taint the statement by prompting Mr. Cerdas to provide certain information that would incriminate individuals suspected by the police;

· The statement was internally consistent and coherent;

· According to the police officer who took the statement and whose evidence was accepted by the trial judge, Mr. Cerdas was calm and in full possession of his faculties when he made the statement; and

· The injuries, albeit relatively minor ones, observed on Mr. Cerdas' face and head were consistent with his description of the attack.

[27] The trial judge also specifically alluded to other evidence, independent of the statement, which in her view supported its reliability. She observed:In addition, there is also other corroborative real evidence which supports the reliability of Cerdas' robbery complaint. P.C. Letsche and P.C. Conley testified that a cell phone bearing Cerdas' number and guns were found on a person fitting the general description of one of Cerdas' assailants approximately three hours later on T.T.C. property. In addition, there is evidence that a ring, similar to Cerdas' ring, was found in a crevice near a second male, who fled the same T.T.C. location at the same time.