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Criminal lit > 14: Hearsay > Flashcards

14: Hearsay Flashcards

1
Q

What is s114 CJA 2003?

A
  1. A statement NOT made in oral evidence = admissible as evidence of matter stated if –
    1. Provision of this chapter/statutory provision
    2. Rule of law preserved by s118
    3. All parties agree; or
    4. In interests of justice
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2
Q

What is:

Admissibility of provision of this statutory provision?

A
  1. Maker of statement unavailable as witness (s116)
  2. Statement made in a business or professional document (s117); and
  3. Statement is a specific type of previous statement made by witness
  4. Statements on which expert will base an opinion on; and
  5. Confessions on behalf of co-accused.

S114(1)(d) allows court to admit evidence in interests of justice = inclusionary discretion.

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3
Q

Statement giving rise to relevant state of mind =

A

Where state of mind asserted, purpose of causing another to believe = hearsay. May be admissible under res gestae exception.

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4
Q

Statement false =

A

admitted if not for truth of contents, but for its falsity.

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5
Q

Is a lie hearsay?

A

NO! it cannot be hearsay!

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6
Q

Hearsay =

A

second hand evidence.

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7
Q

Statement =

A

any representation of fact/opinion by whatever means, inc. sketch. MUST be made by person NOT generated purely mechanically.

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8
Q

Hearsay + previous statements =

A

Witness’s out-of-court statement NOT hearsay if evidence of consistency rather matter stated. Use of W’s previous inconsistent statement NOT hearsay if tendered to show inconsistency.

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9
Q

Mechanically produced evidence

Is CCTV evidence hearsay?

A

CCTV evidence is NOT hearsay.

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10
Q

Matter stated”: requires purpose of person making statement (s115(3));:

A
  1. To cause another to believe the matter stated; or
  2. To cause another person to act or a machine to operate on the basis of matter stated
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11
Q

Matters intended to be believed or Acted upon – Implied assertions = admissible or inadmissible?

A

= admissible. Hearsays doesn’t apply to implied assertion. Where person already knows matter -) evidence NOT hearsay.

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12
Q

R v Twist – test whether communications are hearsay:

A
  1. Identify relevant fact;
  2. Ask if statement was not made in oral evidence;
  3. Ask what matter does party see to admit statement say statement proves;
  4. Identify if there is a “statement”. If no = not hearsay
  5. If yes, ask if one purpose is to cause another to believe it. Yes = hearsay

A common understanding = renders it not hearsay

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13
Q

Can evidence with more than 1 purpose be admissible for hearsay?

A

May be admissible for one purpose

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14
Q

Hearsay definition:

A
  1. Statement;
  2. NOT made in oral evidence; and
  3. Inadmissible as evidence of any matter stated (unless conditions satisfied).
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15
Q

S114(1)(b) – Admissibility under s118

Even if under these, can be excluded because:

A
  1. Irrelevant
  2. Inadmissible due to:
    1. Public policy
    2. Privilege
    3. Other exclusionary evidence
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16
Q

What are the Safeguards for hearsay evidence?

A
  1. S124 – tests credibility where maker of hearsay statement doesn’t attend to testify
  2. power to stop case where evidence = unconvincing; and
  3. specific direction to exclude hearsay evidence (additional to s78 PACE)

All pros evidence subject to s78 PACE.

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17
Q

Where hearsay evidence is received, the judge MUST direct the jury about:

A

The dangers of acting on it.

Where judge permits hearsay, detail behind ruling should be given before speeches. Direction should -) given before evidence heard.

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18
Q

When should a hearsay direction be given?

A

Given before evidence is heard.

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19
Q

S116 CJA 2003

S116 allows hearsay statement admitted if person who made statement:

A
  1. could have given admissible oral evidence
  2. can be identified; and
  3. is unavailable for one of the specified reasons.
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20
Q

S116 CJA 2003

Is leave required for s116 hearsay evidence?

A

Leave = only imposed where maker doesn’t give oral evidence through fear.

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21
Q

What type of evidence does s116 apply to?

A

S116 applies only to first hand hearsay, NOT multiple hearsay.

S116 cannot be applied to anonymous witnesses, s116 requires a name.

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22
Q

Can s116 be applied to anonoymous witnesses?

A

. S116 cannot be applied to anonymous witnesses, s116 requires a name. ORAL evidence MAY be tendered, and statements by conduct.

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23
Q

When is s116 available?

A
  1. Death
  2. Unfitness to be witness owing bodily/mental condition
  3. Outside UK + securing attendance not reasonable practicable
  4. Maker cannot be found despite reasonably practicable steps haven been taken
  5. Maker in fear
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24
Q

s116

Unfitness to be witness:

Is this the same as unfit to attend court?

A

= unfit to be witness, NOT unfit to attend court -) unfitness to give evidence. S116 can included accused. Judge MAY give consideration to whether special measures can assist. Where it can, W = not “unfit”.

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25
Q

s116

Outside UK + securing attendance not reasonable=

Pros must provide:?

A

Evidence W outside UK MUST be established by admissible evidence: declaration NOT sufficient.

Pros must provide sufficiently compelling + detailed reasons for absence of W. TEST: sufficiently compelling and detailed reason.

Absence of good reason = NOT conclusive. Reasonable might be secure attendance = video link. Whether pros taken reasonable steps= Q. of fact. If W lost before trial, reasonable steps MUST be taken to get him to court.

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26
Q

s116

What does fear have to do with it?

A

Fear = Fear doesn’t have to be attributed to D.

  1. Proof of causal link between fear + failure to provide evidence required.

Test = subjective, can be based on misunderstanding.

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27
Q

s116

What does fear have to do with it?

What does iti include?

A

Fear includes: death/injury + financial loss.

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28
Q

Is leave required for s116(2)(e)?

A

Unlike other grounds, under s116(2)(e) – evidence only admitted if leave granted. LEAVE = judge MUST consider:

  1. Relevant circumstances
  2. Contents of statement
  3. Effect of any special measures directions; and
  4. Risk of unfairness to any party

If D caused W’s absence, = prevented from adducing W’s statement where it does favours

29
Q

S117 – Business and other documents

What type of evidence is required for s117?

A

No requirement maker be able to give admissible oral evidence = multiple hearsay allowed.

Oral statements of gestures = NOT admissible unless recorded in doc.

30
Q

S117 – Business and other documents

Two types of docs:

A
  1. ordinary business documents; and
  2. documents prepared for pending or contemplated crim proceedings/investigatin.
31
Q

S117 – Business and other documents

For it to be addmissible what are the first set of CONDITIONS?

A
  1. Docs must have been created/received in course of trade, business, profession.
  2. Supplier of info in doc must be shown to have personal knowledge of facts related
  3. Where doc contains info has been passed from person to person, each person must have done so in course of trade, business, profession.

Unlike s116, no need prove unavailability of maker of statement.

32
Q

What CONDITIONS are are required for s117?

A

to prevent s117 undermining s116 where unavailability cant be satisfied, s117(4) and (5) require doc only admitted under s117 where supplier of info:

  1. Is unable for one of 5 conditions mentioned in s116(2); or
  2. Cannot reasonably be expect to have any recollection of matters dealt with in statement (having regard to length time passed).
33
Q

S118 common law exceptions:

A
  1. Public information
  2. Evidence of reputation
  3. Res gestae
  4. Confessions
  5. Admissions
  6. Common enterprise and
  7. Expert evidence
34
Q

What are the exceptions to the rule against hearsay?

A

Confessions + mixed statements are exception to rule against hearsay.

Can be admission by agent. Agency must be proven by evidence independently of agent’s assertions. Confessions = only admissible against person who makes it + not another person.

35
Q

Public information:

Includes:

A
  1. Published work of public nature
  2. Public documents
  3. Records
  4. Evidence relating to person’s age or date or place of birth
36
Q

S114(1)(d) – interests of justice

NOT a “safety” valve. Doesn’t extend

to what?

A

anonymous hearsay evidence.

37
Q

S114(1)(d) – interests of justice

NOT a “safety” valve. Doesn’t extend -) anonymous hearsay evidence. Judge should have regard when exercising discretion:

A
  1. Probative value of statement
  2. Other evidence given
  3. Importance of matter or evidence
  4. Circumstances in which statement made
  5. Reliability of maker of statement
  6. Reliability of evidence
  7. Whether oral evidence can be given, if not why
  8. Amount of difficulty involved in challenging statement
  9. Extent difficulty likely to prejudice party.
38
Q

Does s114 factors need to be concluded fully?

A

Judge doesn’t need to reach conclusion on all s114(2) factors or proper investigation on all factors.

39
Q

Can you appeal if the judge doesnt reach conclusions on all s114(2) factors?:

A

Appeal = only if judge involved in incorrect principles or outside band of legitimate decisions. (e) + (f) require judge to make assessment

Maker doesn’t have to be reliable, but whether W is reliable for (e). Hearing on admissibility under s114(1)(d) cannot take account evidence on ex parte application + not available for def. s114(1)(d) shouldn’t circumvent other gateways.

40
Q

Common Enterprise =

evidence of matter stated. Before admissible, MUST be established that:

A
  1. Common criminal purpose or enterprise; and
  2. Statement made to pursue or further the purpose.

Common purpose MUST be proved by evidence independent to statement to be admitted under exception. FAILURE?: statement excluded from case against co-accused + in jury trials = direction must be given that jury ignore evidence. Common purpose = wider than conspiracy.

41
Q

Reputation

Evidence of Matter stated =

Can reputation be admitted?

A

evidence of rep can be admitted.

42
Q

Reputation

Evidence of Matter stated =

Use of reputation or family tradition to prove or disprove: …. is admissible?

A
  1. Pedigree, or existence of marriage;
  2. Any public or general right; or
  3. Existence of person or thing

= admissible. Evidence of reputation = prove the matter concerned.

43
Q

Experts = Experts can draw on body of expertise relevant to his field, i.e writings of others in their field. Expert can base his opinion on

A

info contained in statement if expert notified other parties. Other parties can object to use of statement.

44
Q

RES GESTAE

what is Res Gestae? =

A

= statements must be made at or about same time as matter to which it relates, requires contemporaneity.

45
Q

RES GESTAE

This is admissible if:

A

Admissible if:

  1. Statement so emotionally overpowered by event that concoction or distortion can be disregarded;
  2. Statement accompanied an act which can be evaluated as evidence if in conjunction with statement; or
  3. Statement relates to physical sensation or mental state (e.g. intention or emotion)
46
Q

What does res gestae admissibility depend on?:

A

depend on proof of “close + intimate connection” between events + maker

47
Q

EMOTIONALLY OVERPOWERING EVENTS

What does Event mean?=

A

“dominating or overwhelming” in mind of person making statement.

48
Q

EMOTIONALLY OVERPOWERING EVENTS =

TEST:

A
  1. whether concoction or distortion can be disregarded.
  2. This test is passed if the judge concludes that:
    1. There was an “unusual or startling or dramatic event”;
    2. That event therefore dominated the thoughts of the maker of the statement;
    3. As a result of that domination of the thoughts, the statement was an “instinctive reaction” to the event. In other words, the statement was spontaneous;
    4. The statement was approximately contemporaneous
49
Q

EMOTIONALLY OVERPOWERING EVENTS

On the issue of spontaneity:

What are the principles?

A
  1. Statement must be “so closely associated with the event… that it can fairly be said that the mind of the declarant was still dominated by the event”;
  2. The judge must be satisfied that the “event, which provided the trigger mechanism was still operative”;
  3. That the statement is a response to a question is only a factor to consider in deciding whether the statement was sufficiently spontaneous.
50
Q

EMOTIONALLY OVERPOWERING EVENTS

Judge MUST consider factors other than passages of time, e.g.

A

motive to fabricate.

51
Q

EMOTIONALLY OVERPOWERING EVENTS =

What does to weight and what goes to admissibility?

A

Any risk person hearing + repeating statement made error goes to weight not admissibility.

But if special feature alleged to cause mistake,e.g. drunkenness, judge MUST consider if he can “exclude the possibility of error”, if not, judge MAY have to exclude statement.

52
Q

EMOTIONALLY OVERPOWERING EVENTS =

Statement MUST be

WHAT?:

A

true reflection of what was unrolling”. No requirement maker dead/unavailable @ time trial. Can have res gestae statement from 2 witnesses.

53
Q

Domestic abuse = Court MUST consider

A

if special measures can be adopted.

54
Q

Res Gestae

Jury direction:

When and what:

A

where “spontaneous” statement admitted res gestae, judge MUST direct:

  1. That jury decides what was said + be sure witnesses not mistaken;
  2. Jury are satisfied that maker didn’t concoct/distort statement + not activated by malice/ill-will
  3. Where special features bear on possibility = mistake, jury’s attention drawn to it
55
Q

MULTPLE HEARSAY

Hearsay statement not admissible unless:

A
  1. Either statement admissible because Business + other document (s117), previous inconsistent statement (s119) or previous statement of witness
  2. All parties agree; or
  3. Value of the evidence, taking into account how reliable statement is, is so high that the interests of justice require statement = admissible.

Interests of justice test is stricter than in s114(1)(d) – requires value of evidence = “so high”

56
Q

EVIDENCE AFFECTING CREDIBILITY s124 CJA

When does/doesnt it apply?

A

Applies when hearsay =admitted.

S124 doesn’t apply where maker of statement give evidence.

57
Q

EVIDENCE AFFECTING CREDIBILITY s124 CJA

Where statement not made in oral evidence is admitted as matter stated and maker doesn’t give oral evidence in connection, then:

S124(2) -

A
  1. Any evidence which would have been admissible to credibility (e.g. bad character admissible)
  2. Evidence may with court’s leave be given which could have been put in cross-examination as relevant to credibility as maker not present to give evidence, qs cannot be put to him, so evidence put to tribuanl of fact.
  3. Previous inconcistent statement
58
Q

s124 EVIDENCE AFFECTING CREDIBILITY s124 CJA

Where evidence potentially affects credibility of absent witness for prosecution, what MUST be made:

A

Evidence which might affect credibility of absent witness for pros – full inquiries MUST be made – more than simple check for convictions on Police National Computer.

59
Q

EVIDENCE AFFECTING CREDIBILITY s124 CJA

Absence witness for def – def expected disclose:

A

sufficient info to permit proper checks

Opposing party entitled = evidence could have been admitted if W present.

60
Q

EVIDENCE AFFECTING CREDIBILITY s124 CJA

doesnt apply where:

A

S124 NOT apply where maker gives evidence. S124 couldn’t be used – admit bad chara evidence to discredit hearsay if evidence no substantial probative value.

61
Q

DISCRETIONARY EXCLUSION OF HEARSAY: s78

test:

A

Exclusion of pros evidence posing threat to interests of justice = s78.

Fair trial – Where conviction based “solely or to a decisive degree” on statements made by person D had no opp to examine, there must be “a good reason” for absence + fair trial possible:

  1. Good reason to admit evidence
  2. Whether evidence can be reliable; and
  3. Safeguards and proper directions in summing up

No rule against admissibility of sole + decisive hearsay, but greater care required.

62
Q

Hearsay evidence of identification =

Where evidence = hearsay identification + principal element in pros case

What is the court’s approach?

A

court reluctant to receive it. Where admitted, warning of dangers of reliance should be given.

63
Q

Power to stop trial based on hearsay – s125

What power does this provide?

A

S125 provides power to stop case where evidence poses danger of unsafe conviction..

64
Q

Power to stop trial based on hearsay – s125

CC has power to stop case if after close of pros case:​

A
  1. Case depends significantly (wholly/partly) on hearsay; and
  2. Evidence so unconvincing conviction would be unsafe
65
Q

Power to stop trial based on hearsay – s125

What must the judge do and when??

A

At end of evidence, just MUST where legitimate argument hearsay = unconvincing, MUST make own mind up, NOT as fact finger, but if conviction would be unsafe, including:

  1. Assessing reliability of hearsay;
  2. Its place in evidence as whole
  3. Issues in case as they emerged + circumstances

Court MUST direct jury = acquit or discharge jury (if retrial)

D may not be acquitted of ALL offences

66
Q

NOTICE to introduce hearsay

When and what?

A
  1. S114(1)(d) (evidence in interests of justice)
  2. S116 (evidence where witness unavailable)
  3. S117(1)(c) – statement prepared from crim proceed.
  4. Multiple hearsay

Party MUST serve notice on: court officer + party. Party entitled to notice MAY waive this.

67
Q

Pros who wants to introduce hearsay evidence MUST serve notice:

A
  1. 28 days after D not in court; or
  2. 14 days after D pleads not guilty in CC.

If D wants to introduce evidence MUST serve when reasonably practicable.

68
Q

What if a party opposes hearsay?

A

MUST apply to court to determine objection, serve app on court officer + party. Serve app not more than 14 days after:

  1. Service of notice to introduce evidence
  2. Service of evidence party objects, if no notice required
  3. D pleads not guilty

Whichever happens last.

69
Q

What if a party opposes hearsay?

Where does the court determine the application?

The court must not determine application unless

When can the court adjourn?

A

Court MAY determine app at public/private hearing/ without evidence.

MUST not determine app unless party who served notice: is present or reasonable opp to respond,

MAY adjourn + MAY discharge/vary. Where party served notice + no objection = court MUST treat evidence = admissible as agreement. Party who wants extension MUST apply within time + explain delay.

Criminal lit (28 decks)

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