The Res Gestae exception to the Hearsay Rule

Res Gestae

This is a rather confusing exception to the hearsay rule. It has been used, and is still used, by some counsel to try to admit hearsay without giving serious consideration to the issue of hearsay.

Thayer reminds us that the exception was first used by “Garrow and Lord Kenyon – two famously ignorant men”[i]. That said, the res gestae exception to the hearsay rule is quite clearly established and fairly easily defined. The res gestae exception to the hearsay rule can be stated thusly:

A hearsay statement relating to a startling evidence or condition that was made while the declarant was under the stress of excitement caused by the event or condition is admissible though hearsay.

The reasoning here is that the event was so startling that the declarant does not have reflective capacity and will only speak the truth as the declarant sees it.[ii] The statement must be made while the declarant still feels the shock of the event; if the shock wore off and reflective thought occurred, the statement will not be admitted. The Court in Gilbert[iii] accepted the following definition of the res gestae exception:

Whatever act, or series of acts, constitute, or in point of time immediately accompany and terminate in, the principal charged as an offence against the accused, from its inception to its consummation or final completion; or its prevention or abandonment, – whether on the part of the agent or wrong-doer in order to its performance, – and whatever may be said by either of the parties, during the continuance of the transaction, with reference to it, including herein, what may be said by the suffering part, though in the absence of the accused, during the continuance of the action of the latter – form part of the principal transaction, and may be given in evidence as part of the res gestae, or particulars of it.

The view of res gestae in Gilbert comes out of the caselaw. The Wilkinson[iv] decision is fairly typical. A deceased made a statement suggesting that she was in the midst of a fight with her husband – she was then shot by an unseen shooter. The prosecutor wanted to adduce the deceased’s statement to prove she was fighting with her husband. The statement was taken as hearsay being an out of court statement adduced to prove the truth of its contents. Was the statement admissible as part of the res gestae? The statement was made contemporaneous with the fight and flowed from it and, as a result, was admissible as being part of the res gestae. Justice Hall notes:

She [the deceased] had no opportunity for fabrication and her statements were not mere narrative of events but were part of the transaction itself, and are admissible on this ground.
Similarly, Lord Wilberforce notes in Ratten v The Queen[v]:

As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adopt his account, he should exclude it. If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

At base, res getae is based on the assumption that something said spontaneously and without time for reflection is likely to be sincere and believed.[vi]

The statement may be false as a result of misperception, but it will not be fabricated.


[i] (1881), 15 Amer. L. Rev. 1, 10. If anyone other than Thayer said such a thing, it might bespeak contempt, but even abuse by Thayer conveys a measure of respect. In any event, one doubts Garrow or Lord Kenyon are disturbed in the grave by the reference.
[ii] R v Folland (1999), 132 C.C.C. (3d) 14; R v Mitchell [2006] O.J. No. 4172
[iii] Gilbert v The King (1907), 12 C.C.C. 127
[iv] R. v Wilkinson [1934] 3 D.L.R. 50
[v] [1971] 3 All E.R. 801
[vi] R. v Schwartz (1978), 40 CCC (2d) 161 (NS CA)