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Lecture 8

PSYC 376 Lecture 8: Unit 8

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Department
Psychology
Course
PSYC 376
Professor
Trishia Coburn
Semester
Spring

Description
Unit 8: Hearsay Evidence Introduction Not all child complainants are able to testify in court. The child may be too young to testify. The child may be too traumatized to testify. The alleged offence may have happened too long ago and the child has forgotten what happened. For these and other reasons, in some cases the only way the trier of fact will hear the childs report is if it is admitted as hearsay. However, there are several legal obstacles to the admission of hearsay evidence, most of which derive from the belief that hearsay is inherently unreliable. Dunning (1999) provides a useful framework for thinking about the psychological issues concerning hearsay: fidelity and calibration. Fidelity is concerned with whether hearsay witnesses can accurately report what a child said and calibration is concerned with whether jurors can give appropriate weight to hearsay evidence. Both issues will be addressed in this Unit. Definition of Hearsay Hearsay is an outofcourt statement tendered to prove the truth of its contents. There are two necessary components to this definition. First, it is an out of court statement. This means that the declarant, the person who made the statement, is not in court to testify as to what was said. The statement is being reported in court by someone who heard it (i.e., the hearsay witness). Second, the statement is being tendered to prove the truth of the contents. If the statement is not being tendered to prove the truth of the contents, it is not hearsayeven if it is an out of court statement. An example may help. Imagine that you were asked to go to court to say that you spoke to Gary on May 12 and he said it is raining in England. If the purpose of your testimony is to help to establish that is was raining in England on May 12, it is hearsay and presumptively inadmissible. If, on the other hand, the purpose of your testimony is to establish that you spoke to Gary on May12, it is not hearsay and the hearsay rule against its admission does not apply. The Law of Hearsay Evidence Hearsay is presumptively inadmissible because it is considered inherently unreliable for three reasons. The declarant was not under oath or solemn affirmation when the statement was made. The trier of fact cannot observe the demeanor of the declarant to assist in determining the credibility of the statement. And there is no opportunity to crossexamine the declarant. Presumptively inadmissible means that it is inadmissible but the party wanting to tender it may argue that in the circumstances, the hearsay should be admitted. Historically, hearsay evidence could be admitted if the statement was made in very particular circumstances. For instance, hearsay could be admitted if the statement was made by a person just before he or she died (dying declaration); if the statement was made while the declarant was under stress or excitement from a startling event (excited utterance); or if the statement was against the declarants interest. An astute reader may notice that all of these circumstances involve statements that we believe would not be false; that is, there is an air of reliability about the statements. Before 1990 statements had to fit into one of the exception categories to be admitted. R. v. Khan (1990) changed that and introduced a principled approach to admission of hearsay evidence. First, lets look at the facts in R. v. Khan (1990). In this case a medical doctor was charged with having sexually assaulted a 3.5year old girl when her mother was in the examining room and the child was with Dr. Khan in his private office. On their way home the child and the mother were talking about the visit and the following exchange took place: Mom: So you were talking to Dr. Khan, were you? What did he say? Child: He asked me if I wanted a candy. I said yes. And do you know what? Mom: What? Child: He said open your mouth. And do you know what? He put his birdie in my mouth, shook it and peed in my mouth. Mom: Are you sure? Child: Yes. Mom: Youre not lying to me, are you? Child: No. He put his birdie in my mouth. And he never did give me my candy The case went to trail 15 months later. At trial, the judge found the child incompetent to testify and he found that the hearsay evidence of the mother was inadmissible because it did not fit one of the peculiar exceptions to the general hearsay rule. Given that there was little other evidence against Khan, he was acquitted. The provincial court of appeal held that the trial judge was too strict in his interpretation of the hearsay rules and ordered a new trial (the court of appeal would have admitted the childs hearsay statement to the mother). In an appeal to the Supreme Court of Canada, the
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