Background
In August 1994, Bernard Cook and Darlene Weselowski were drinking with Robert Dennis Starr in a hotel near Winnipeg. In the late hours of the night Starr parted ways with Cook and Weselowski. Together, Cook and Weselowski were approached by Jodie Giesbrecht, a sometimes girlfriend of Cook. During an ensuing conversation Cook told Giesbrecht that he could not go with her that night because he had to "go and do an Autopac scam with Robert", as he had been given $500 for wrecking a car for insurance purposes.
A few hours later the bodies of both Cook and Weselowski were found on the side of a nearby highway. They had been shot in the head. Starr was arrested in connection with the murders.
At trial, the Crown advanced the theory that the murders were gang-related, where Starr had used the insurance fraud scam as a means to get Cook into the countryside to murder him. The case hinged on the testimony of Giesbrecht and the statement she heard from Cook that night. The trial judge found the statement admissible on the "present intentions" or "state of mind" exception to the hearsay rule.
Reasons of the court
In a five-to-four decision, the Supreme Court held the evidence should not be admitted and sent the case back for a retrial.
Principled Approach
Two significant holdings came from Starr, which affected the way the principled approach was to be implemented. The first was that the traditional hearsay exceptions would continue to operate, but that they would have to conform to the principled approach's tenets of reliability and necessity (at paragraphs 202–207). Therefore, if a conflict arose between the traditional exceptions and the principled approach, it would be the principled approach that would prevail. The second and most controversial aspect of the decision was that in assessing threshold reliability, the trial judge must only consider the circumstances surrounding the making of the statement (at paragraphs 215–217). This holding effectively barred the consideration of corroborative evidence in the reliability assessment. This aspect of Starr was overruled by R v Khelawon , 2006 SCC 57 on December 14, 2006.
Jury instruction
As a side issue, the Court held that the judge failed to properly instruct the jury on the standard of proof. The judge should have placed "beyond a reasonable doubt" between absolute certainty and "balance of probabilities".
Where the law stands
Although Starr still has precedential value, the Court explicitly overturned some of its findings in Khelawon. Charron J at paragraph 4 said:
As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.
Once the proposed evidence is identified as hearsay, it is presumptively inadmissible. I stress the nature of the hearsay rule as a general exclusionary rule because the increased flexibility introduced in the Canadian law of evidence in the past few decades has sometimes tended to blur the distinction between admissibility and weight. Modifications have been made to a number of rules, including the rule against hearsay, to bring them up to date and to ensure that they facilitate rather than impede the goals of truth seeking, judicial efficiency and fairness in the adversarial process. However, the traditional rules of evidence reflect considerable wisdom and judicial experience. The modern approach has built upon their underlying rationale, not discarded it. In Starr itself, where this Court recognized the primacy of the principled approach to hearsay exceptions, the presumptive exclusion of hearsay evidence was reaffirmed in strong terms. Iacobucci J. stated as follows (at para. 199):
By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system.
Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted. The Federal Rules of Evidence prohibit introducing hearsay statements during applicable federal court proceedings, unless one of nearly thirty exemptions or exceptions applies. The Federal Rules of Evidence define hearsay as:
A statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement..
In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:
Crawford v. Washington, 541 U.S. 36 (2004), is a landmark United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court held that prior testimonial statements of witnesses who have since become unavailable may not be admitted without cross-examination.
First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.
R v Khan [1990] 2 SCR 531 is a landmark Supreme Court of Canada decision that began a series of major changes to the hearsay rule and the rules regarding the use of children as witnesses in court. In this case, and subsequently in R v Smith (1992), R v B (KG) (1993), R v U (FJ) (1995), R v Starr (2000), and finally, R v Khelawon (2006), the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The right only applies to criminal prosecutions, not civil cases or other proceedings. Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.
Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies.
R v B (KG), [1993] 1 SCR 740, popularly known as the KGB case, is a leading Supreme Court of Canada decision on the admissibility of prior inconsistent statements as proof of the truth of their contents. Prior to this case, prior inconsistent statements made by a witness other than an accused could merely be used to impeach the witness's credibility, not for substantive purposes. Here, the Court held that if the statements could be found to be both necessary and reliable then the statements could be admitted as an exception to the hearsay rule.
The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may in common law nonetheless be admitted as evidence in criminal law trials because it constituted the last words of a dying person. The rationale is that someone who is dying or believes death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.
R v Khelawon, 2006 SCC 57 is a leading decision by the Supreme Court of Canada on the principled approach to hearsay evidence.
R v Smith, [1992] 2 SCR 915 is a leading decision on hearsay by the Supreme Court of Canada. This decision, along with R v Khan (1990), began what is called the "hearsay revolution", supplementing the traditional categorical approach to hearsay exceptions with a new "principled approach" based on reliability and necessity of testimony.
Ohio v. Roberts, 448 U.S. 56 (1980), is a United States Supreme Court decision dealing with the Confrontation Clause of the Sixth Amendment to the United States Constitution.
Giles v. California, 554 U.S. 353 (2008), was a case decided by the Supreme Court of the United States that held that for testimonial statements to be admissible under the forfeiture exception to hearsay, the defendant must have intended to make the witness unavailable for trial.
Tome v. United States, 513 U.S. 150 (1995), was a case decided by the Supreme Court of the United States that held that under Federal Rules of Evidence Rule 801(d)(1)(B), a prior consistent statement is not hearsay only if the statement was made before the motive to fabricate arose.
The South African law of evidence forms part of the adjectival or procedural law of that country. It is based on English common law.
Beech Aircraft Corporation v. Rainey, 488 U.S. 153 (1988), was a United States Supreme Court case that addressed a longstanding conflict among the Federal Courts of Appeals over whether Federal Rule of Evidence 803(8)(C), which provides an exception to the hearsay rule for public investigatory reports containing "factual findings," extends to conclusions and opinions contained in such reports. The court also considered whether the trial court abused its discretion in refusing to admit, on cross-examination, testimony intended to provide a more complete picture of a document about which the witness had testified on direct.
Chambers v. Mississippi, 410 U.S. 284 (1973), was a United States Supreme Court case in which the Court held that a state may not enforce its rules of evidence, such as rules excluding hearsay, in a fashion that disallows a criminal defendant from presenting reliable exculpatory evidence and thus denies the defendant a fair trial.
R v Baker [1989] 1 NZLR 738 was a decision of the Court of Appeal of New Zealand concerning the admissibility of hearsay evidence in a criminal trial. The judgment of President Sir Robin Cooke's created a common law exception to the rule against hearsay evidence in situations where the evidence is reliable and the witness unavailable. This principle was incorporated into the codification of the hearsay rule in the Evidence Act 2006.
DPP v McLoughlin, [2009] IESC 65, was an Irish Supreme Court case, which confirmed that when objecting to the granting of bail where alleged witness intimidation is raised, the judge in the application should explicitly address the likelihood, extent, and impact of intimidation. This case specifically raised the issue of hearsay in considering potential witness intimidation and in the context of a bail decision. The decision of Denham J, goes on to state in regards to hearsay that: "The relevance and weight of such evidence is a matter to be determined by the trial judge and that a judge should be careful on the weight he or she places on such evidence". The case also had implications for bail applications because the Supreme Court found that a high case load for the High Court had implications on bail decisions.
