You have all heard the phrase “it’s hearsay.” Hearsay evidence is an oral or written statement made in court by one person about a statement made out of court by another person. The object of the court evidence is to establish the truth of what is contained in the out of court statement. However, the statement is inadmissible in court.
There are two reasons for the exclusion of hearsay evidence. The out of court evidence is not given under oath and it is not subject to cross-examination. The rule against hearsay evidence is of great antiquity and can be traced back to the 1400’s in England where such evidence was first rejected on the basis that it was not evidence given under oath. By 1700, the hearsay rule was well established in a growing urbanized and industrialized England and the evidence was further rejected at that time on the basis that cross-examination of the out of court person was not available.
There is an interesting exception to the hearsay rule. A hearsay statement of a dying person may be admissible in court in homicide cases provided certain requirements are met. A critical requirement is to prove that the dying person must have believed that death was imminent when the statement was made. Courts have looked at the point of death as so solemn an event that every motive to commit a falsehood is gone inducing the dying person to speak the truth before God as if under oath before a court of law.
Other hearsay statements are also admissible in court. If a person makes a statement against his or her interest, the statement may be admissible. An example is a statement made against the person’s pecuniary interest, such as “I owe the money.” Confessing to a crime is often considered to be a statement made against a person’s penal interest. Claims by Canadian aboriginals to fishing and hunting rights over specific lands have been proven by the admissibility of oral history to establish that such activities occurred in the past.