Why are affidavits hearsay

For example if a Deponent in an affidavit stated that someone told them that goods were defective when they were sold and delivered the representation , this conversation prima facie would be inadmissible as evidence. This is because the Deponent is relying on a representation, outside of court, made to them by another party, to prove the existence of a fact i.

Another common rule that would exclude the whole or part of an affidavit is the opinion rule. This is to ensure that that only evidence of facts observed are admitted and therefore minimising the risk in misleading a court or jury. However the judge may not allow the hearsay to be included as evidence. If the judge makes such a ruling then the hearsay part of the affidavit is ignored by the court. The inclusion of the hearsay does not invalidate the rest of the affidavit.

Whether the hearsay part of an affidavit can count as evidence will depend mainly on two things. First, the particular kind of court proceedings and the stage that they are up to. And secondly, whether the hearsay statement is being relied upon for the truth of the matters asserted. It sounds deceptively simple but it causes advocates and judges many problems. Our example above however is quite straightforward. But if the statement was being relied upon to prove simply what Dan said for example to show that he was a liar because the vehicle was never in flames then the statement would not infringe the hearsay rule.

That part of the affidavit would be allowed to count as evidence. Popular posts How does a Jewish person swear an oath? Or should Jewish people affirm affidavits instead? Judaism is one of the most ancient and well known religions on earth. When it comes to making an affidavit, Read More. What is a sham affidavit and how does the sham affidavit rule work? If the evidence does not satisfy both components, the opinion evidence will be inadmissible and struck from the affidavit.

Finally, opinions that qualify as 'ordinary observations' are admissible through a lay witness. Alberta courts have acknowledged that affidavits are often filled with impermissible evidence.

Rule 3. While Topolniski J. ANC Timber provides a helpful guide in assessing your own or an opposing party's affidavit evidence, and determining what evidence a court may deem inadmissible. On a daily basis, the commercial litigation group at McLennan Ross LLP assists clients with the gathering, assessing, presentation and challenging of evidence in a wide variety of disputes. Any member of our group would be pleased to answer questions you might have about the use and value of information being considered in a present dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. All Rights Reserved. Password Passwords are Case Sensitive. Forgot your password? Free, unlimited access to more than half a million articles one-article limit removed from the diverse perspectives of 5, leading law, accountancy and advisory firms.

We need this to enable us to match you with other users from the same organisation. It is also part of the information that we share to our content providers "Contributors" who contribute Content for free for your use. Learn More Accept. Your LinkedIn Connections with the authors. To print this article, all you need is to be registered or login on Mondaq. The Fundamental Rules of Evidence Apply to Affidavits The purpose of an affidavit is to bring a litigant's admissible evidence before the court.

Prejudice is not narrowly defined and can include: Evidence that potentially undermines an accurate result, or complicates, frustrates, or degrades the process; and Adverse practical consequences such as the undue consumption of time, unfair surprise, the creation of distracting side issues, and a potential to confuse the trier of fact.

Application of Rules to Affidavit Evidence 1. Irrelevant evidence is impermissible Topolniski J. Hearsay Evidence Affidavits must be sworn on the basis of personal information with one exception provided by the Alberta Rule of Court.

Opinion Evidence Opinion evidence is presumptively inadmissible. Conclusion Alberta courts have acknowledged that affidavits are often filled with impermissible evidence. Katherine Hagan. The punitive damages award against the employer was the basis of the appeal.