Handout

DECLARATIONS AGAINST INTEREST

Adeclaration against interest is defined as a statement made by a declarant who is unavailable that is against the declarants pecuniary, proprietary, or penal interest when it was made. A statement against interest is admissible as an exception to the hearsay rule. However, for a statement against penal interest to be admissible in a criminal case, it must be supported by corroborative evidence. The exception for declarations against interest applies: where the statement is against the declarant's pecuniary or proprietary interest where the statement is against the declarant's penal interest

Conditions for Admissibility

A declarant's statement against his or her penal or pecuniary interest is admissible for its truth under certain conditions: 1. Declarations against Pecuniary and Proprietary Interest The person making the statement must have had personal knowledge of the facts The statement must have been to the declarant's immediate prejudice when he or she made it The declarant must have known that the fact stated was against his or her interest at the time of the statement

2. Declarations against Penal Interest The declarant must be unavailable as a witness (deceased, insane, gravely ill, or not amenable to the court's process)

Handout The vulnerability to criminal prosecution cannot be remote The circumstances surrounding the making of the statement, and connection with the accused

Necessary Evidence Case name: Clarance v. Kerr Stolen vehicle Collision (with tree) Fatal accident: passenger dead Defendant (Kerr, the driver) has no recollection of the events Defence: the deceased was contributorily negligent Issues Whether Jason Kerr was the driver Whether Jason Kerr was negligent Split responsibility contributory negligence Admissibility of the testimony of Kyle Brown

Kyle Brown testimony was necessary as it was relating to the matter in issue: The declarant, Steven Clarance was unavailable as a witness (deceased) What he said (they had to get rid of it) were declarations against interest McDermid J.: Liability was attributed 75% to Kerr and 25% to the deceased

Reliable Evidence Case Criminal Law Appeal Motion by accused for mistrial mistake in law Voire dire (procedure) Issues Whether the mistrial is a remedy Videotaped statement of accomplice introduced into evidence

Handout Whether the jury needs to be given caution Whether the evidence admissible under exception to hearsay rule is reliable evidence R. Williams videotaped testimony was RELIABLE: He was under arrest and charged with second degree murder He was told that what he said could be used against him in relations to the charge P.B. Hockin J.: Confessions freely given with proper warning, are admissible against the maker as inherently reliable and as an exception to the rule against hearsay; its a declaration against interest

References:

1. Doug Cochran, Mary Ann Kelly & Michael Gulycz (2008). Rules of Evidence: A Practical Approach 2. R. v. Williams, [2005] Court of Appeal 43700 3. Clarance v. Kerr, [2000] O.T.C. 832