A STUDY OF THE THEORY OF APPRAISAL FOR SELECTION By ...

inability to observe the demeanour,
credibility, and personality of the declarant
whose statement is in issue, the inability to
qualify, clarify or cast doubt upon the
statement by cross-examination, and the fact
that ordinarily the declaration, unlike the
rest of the evidence before the court, will
not have been given under oath.21
Documents are categorized by the courts as hearsay because
"they can only 'tell' the court that which someone else 'told'
them."22 Documents, therefore, "inevitably make in-court
assertions about statements made by someone else outside of the
courtroom."23 Because such evidence is indirect, it is unable to
comply with two essential features of the judicial system that
ensure accuracy of evidence: cross-examination and witnessing
under oath.
The primary exception of documents to the hearsay rule is
provided by a circumstantial guarantee of trustworthiness in the
creation process:
a court can feel relatively comfortable in
breaking new ground if it has been satisfied
that the circumstances of the document's
creation provide an adequate substitute for
the traditional safeguard of crossexamination.
The proponent of a document
should seek to persuade the court that the
document, because of the circumstances of its
21 J. Douglas Ewart, Documentary Evidence in Canada,
(Carswell Legal Publications, 1984), 12.
22 J.^Douglas^Ewart,^"Documentary Evidence: The
Admissibility of Documents Under Section 30 of the Canada
Evidence Act," in Criminal Law Quarterly 22 (1980): 195. See
note 16a.
23 Ewart, Evidence, 12.
21