👩🏽⚖️CLP 4: Ev (hearsay, confession, character) Flashcards
What is hearsay?
‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it’.
Hearsay: what counts as a ‘statement’?
Any representation of fact or opinion made by a person by whatever means (inc a representation made in a sketch/photofit/other pictorial form)
Examples of hearsay?
(a) witness repeating at trial what they’d been told by another person;
(b) a statement from a witness being read out at trial instead of the witness attending court to give oral evidence;
(c) a police officer repeating at trial a confession made to them by the defendant;
(d) a business document being introduced in evidence at trial.
Types of hearsay
First hand-hasn’t passed through another person
Multiple-has passed through another person (less circumstances where its admissible)
What are the 4 grounds for admitting hearsay?
- Statutory provision
- Preserved common law exceptions
- All parties agree
- Court satisfied its in the interests of justice
Grounds for admitting hearsay: what are the statutory provisions?
- Witness unavailable
- Business and other docs
- Prev inconsistent statements of a witness
- Prev consistent statements of a witness
- Statements of a witness not in dispute
- Formal admissions
Stat provisions ground for admitting hearsay: Conditions for witness unavailable hearsay to be admissible?
- First hand
- Relevant person identified to courts satisfaction
- relevant person:
dead
unfit mentally/physically
outside UK +not reasonably practicable to secure attendance
cant be found after taking reasonably practicable steps
is fearful to give oral ev +court gives leave - Court considers its in the interests of justice regarding contents, risk of unfairness (difficulty of challenging) and the fact that a special measures direction could be made
Stat provision ground for admitting hearsay: conditions for business and other docs to be admissible?
- oral ev would be evidence of matter
- AND
a. doc (or part w/ statement) created/received in course of trade, business, profession, other occupation, as holder of a paid/unpaid office (b) person who supplied info had/may reasonably be supposed to have had, personal knowledge of the matter
(c) each person info supplied through received info in course of trade, business, profession, other occupation, as holder of a paid/unpaid office - IF prepped for crim proceedings/investigation:
a. above satisfied
b. relevant person cannot reasonably be expected to have any recollection of the matters dealt with (regarding the length of time since info supplied and all other circumstances)
Grounds for admitting hearsay: what are the preserved common law exceptions?
- Confession/mixed statement
- As part of Res gestate consider‘ Ackner criteria:
Primary Q: Can possibility of concoction or distortion be disregard?
-circumstances so unusual/dramatic as to dominate thoughts/no time for reflection
-Sufficiently spontaneous/mind controlled by event
-special features apart from time related to the possibility of distortion
-Error of facts issue of weight not admissibility (q for jury)
Grounds for admitting hearsay: what will the court have regard to when considering admitting hearsay under the interests of justice ground? (7)
- Probative value of statement
- Other ev that has/can be given
- How important matter is to case
- Circumstances statement made
- Reliability of maker
- Can oral ev of matter stated be given?
7.Difficulty in challenging statement/how it would prejudice party facing it
AS A WHOLE: Ds right to a fair trial
What cases do the procedural rules for admitting hearsay apply to?
1) In interests of justice for the hearsay evidence to be admissible
2) Witness unavailable to attend court
3) evidence is multiple hearsay
4) Prosecution/defence rely on s 117 for the admission of a written witness
5) statement prepared for use in criminal proceedings
What is the procedure for admitting hearsay?
Party wanting to adduce hearsay/oppose other parties app to adduce must:
□ Give notice of intention to court and other parties
□ Using set of prescribed forms
□ court will impose time limits for CPS and D to give notice of their intention to adduce hearsay evidence at trial.
What can the court do regarding the procedure for admitting hearsay?
□ Dispense of need for notice
□ Allow oral notice
□Shorten/extend time limit for notice
When will the admissibility of hearsay be determined if its opposed?
Court will determine admissibility at pre trial hearing:
a. MC: case management/pre trial review/specific hearng to resolve admissibility disputes
b. CC: PTPH/specific pre trial hearing
What is a confession
‘any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’
Are confessions admissible?
Yes as an exception to the hearsay rule?
If a confession is made in a mixed statement, which part of the statement is admissible?
Whole statement
Is a confession made by a co defendant admissible?
Yes if implicates D
Can also use to say it was Co-D who did it
UNLESS co-D represents it was obtained via oppression/unreliability (UNLESS satisfied on balance of probabilities it wasn’t obtained that way)
Overview of was to challenge the admissibility of a confession
- s78
- s76(2): Did confess but was obtained via:
a. Oppression
b. Unreliability - Didn’t confess, person claiming is mistaken/fabricated evidence
How can a confession be challenged under s76(2)(a) PACE
If confession was/may have been obtained by OPPRESSION of the person who made it, the court must exclude unless prosecution can prove beyond a reasonable doubt that the confession was not so obtained
How can a confession be challenged under s76(2)(b) PACE
If confession was/may have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court must exclude unless prosecution can prove beyond a reasonable doubt that the confession was not so obtained
Meaning of a confession being obtained by ‘oppression’?
Exercise of authority/power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc/the imposition of unreasonable or unjust burdens’
Inc: – torture – inhuman or degrading treatment
– use or threat of violence
Examples of things which may render a confession unreliable
– Denying refreshment/rest so not in fit state to answer Qs (esp if ill) – Inducement to confess – Misrepresenting strength of pros case – Questioning in inappropriate way (repeating qs a lot/badgering) – Questioning sus police should have known was not in a fit state to be interviewed (drink/drugs/condition) – Threatening (eg to keep at station until confession) Denied access to legal advice but MUST be a causal link between breach and unreliability of confession (if D had been allowed access, they would not have confessed)
When is a confession likely to be excluded under s78
Confessions D accepts making: Mostly concern access to legal advice
Confessions D denies making
Eg an interview outside the police station likely to be excluded under s78 if police breached by:
} failing to make an accurate record of the defendant’s comments
} failing to give the defendant an opportunity to view the record of their comments and to sign this record
} failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station
What is a significant statement?
Something said by sus in presence and hearing of police officer/staff outside a formal police interview that appears to be capable of being used in evidence against the suspect in particular a direct admission of guilt:
◊ At/just before time of arrest
◊ On way to station following arrest
◊ At station
If a confession is deemed inadmissible, can evidence obtained as a result of it still be admissible?
Court excluding evidence of a confession made by D will not affect he admissibility in evidence of any facts discovered as a result of the confession
BUT cps wont be able to tell court facts were discovered as a result of confession
What is the procedure for challenging the admissibility of confession evidence in the CC?
At voir dire
Officer it was made to +D will give evidence +interview played if relevant
Pros/defence council will make submissions
If ruled admissible-interviewing officer will give evidence (Defence can still attack credibility of confession)
What is the procedure for challenging the admissibility of confession evidence in the MC?
Ruling sought when interviewing officer gives evidence
If D seeks to exclude, mag hold void dire (consider s76/78 at same time)
Pros must prove beyond reasonable doubt that defence wasn’t obtained as said under s76
If s78 only, no voir dire needed
How can significant statements be excluded?
Rules of admissibility of confessions applies bc falls within def of confession as is adverse to person who made it
What is bad character evidence?
Evidence of, or a disposition towards, misconduct’, other than evidence connected with the offence for which the defendant has been charged.
‘Misconduct’= ‘the commission of an offence or other reprehensible behaviour’.
Can bad character evidence alone prove guilt?
No ,pros must substantiate case before jury/mag can take bad character into acc
7 gateways for admitting character evidence?
A. All parties agree
B. Adduced by D in cross indented to elicit it
C. Important explanatory ev (pros only)
D. Relevant to important matter in issue (propensity to be 1. untruthful/2. commit offences of same kind)
E. Substantial probative value
F. Correcting false impression
G. D has made attack on another character
Character: Gateway B, evidence is adduced by D or is given in answer to a question asked in cross- examination and intended to elicit it: why would a D introduce evidence of their own bad character
◊ Only v minor prev convictions and don’t want jury to think they have extensive
◊ Pleaded guilty lots before and NG here
When will character evidence be important explanatory evidence (Gateway C)
(a) without it, magistrates/jury would find it impossible or difficult properly to understand the case
(b) the value of the evidence for understanding the case as a whole is substantial (more than merely trivial or marginal)
How can character evidence be excluded under gateway C (important explanatory evidence)
If est, court has no power to prevent admission but has discretionary power to exclude under s78
Character: Which gateways can ONLY be relied on by the prosecution
C: important explanatory evidence
D: relevant to an important matter in issue between D and prosecution
F: evidence to correct a false impression given by D
G: D has made an attack on another person’s character
Character: Which gateways can only be relied on by the D
E: it has substantial probative value in relation to an important matter in issue between D and a co-D
Character evidence: when will evidence be relevant to an important matter in issue between d and pros (gateway D)
- Propensity to commit offence of kind they’re charged with
a. same description
b. same category (sex and child u18 OR theft)
c. significant factual similarities - Propensity to be untruthful
a. offence inc untruthfulness eg. fraud by false rep/perjery (NOT just dishonesty)
b. plead NG but convicted
Character: when will an offence be of the same description (gateway D)
the statement of the offence in a written charge or indictment would be in the same terms
Character: when will an offence be in the same category (gateway D)
- Sexual offences against children under 18
2. Theft category: theft
robbery
burglary
aggravated burglary
taking a motor vehicle or conveyance without authority
aggravated vehicle taking
handling stolen goods
going equipped for stealing
making off without payment
attempts to commit above
aiding, abetting, counselling, procuring or inciting above
Character: What factors will be considered when deciding if an offence shoes D has propensity to commit the kind of offence they’re charged with? (gateway D)
- Does Ds history of offending show a propensity to commit offences?
2. does that propensity make it more likely D committed the current offence?
3. If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?
Character: what is ‘D has propensity to be untruthful’ (under gateway D) only used for?
(a) the manner in which the previous offence was committed demonstrates that the D has such a propensity (false representations OR perjury)
must be untruthful NOT dishonest (ie. Actively sought to mislead by making false representation eg perjury not offences with dishonesty as element)
(b)D pleaded NG to but was convicted following trial at which they testified and was not believed.
Character: when will a co-D want to admit evidence under ground E (Substantial probative value for important matter in issue beteen D/Co-D)
- Other Ds propensity to be untruthful undermines their credibility
- Other Ds propensity to commit same type of offence makes it more likely they (not D) did it
Character: What is a ‘false impression’ under ground F?
‘ responsible for making an express or implied assertion which is apt to give the court or jury a false or misleading impression about the D’.
Character: when will D will be treated as being responsible for making a false impression under gateway F?
If the assertion is:
a. made by D in the proceedings
b. made by D when being questioned under caution by police
c. made by a witness called by D
d. made by any witness in cross- examination in response to a question asked by the D that is intended to elicit it; or
e. made by any person out of court, and the defendant adduces evidence of it in the proceedings
Character: what amounts to an attack on another persons character under gateway G? n
Evidence to the effect that the other person has:
a. Committed an offence
b. Behaved or is deposed to behave in a reprehensible way (court likely to give wide interpretation)
How can evidence of the Ds bad character excluded?
ONLY under ground
D ( Relevant to important matter in issue ) and
G (D made attack on anothers character)
Other gateways: automatically admissible if requirements satisfied unless exclude under s78 discretionary power
Character: how can character evidence be excluded under ground D?
Court MUST not admit if on an application by D to exclude it, it appears that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Character: factors to consider for excluding evidence under ground D for propremsiy to commit offences of the same kind
- Do the facts differ?
- Has a long tome elapsed?
- oes the propensity make it no more likely that the defendant is guilty of the offence?
Character: factors to consider for excluding evidence under ground D for propensity to be untruthful
◊Most likely to use powers when (still at their discretion): } Convictions more prejudicial than probative } nature previous convictions is such that jury likely to convict on basis of these convictions alone
Being used to support a case which is
Prev convictions spent
Character: How can evidence be excluded under gateway G?
Court must exclude evidence that would otherwise be admitted under this gateway if, on an application by the defendant, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
What is a ‘contaminated’ case?
witnesses have colluded to fabricate evidence of the defendant’s bad character.
How can a contaminated case be stopped?
Judge in CC (not MC) can direct jury to acquit/order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’.
What is the procedure for admitting bad character evidence?
§ If CPS wish to adduce: give notice of intention to court and other parties using prescribed form with written record of convictions
§ Standard directions-court will impose time limits
§ D opposes-must apply to court for such evidence to be excluded, app sent to court and other parties (time limit in CrimPR
When can bad character evidence of a NON defendant be admitted?
- It’s important explanatory evidence
- OR It has substantial probative value in relation to a matter which:
a. is in issue
b. AND is of substantial importance in the context of the case as a whole - OR all parties agree
What may previous convictions discrediting prosecution witness be?
a. convictions for offences w/ false statement or representation
b. convictions where witness pleaded NG but convicted at trial where their version of events was disbelieved
Convictions may show just dishonesty (as opposed to untruthfulness)
Where credibility is in issue in relation to an important witness, what evidence of their bad character can be admitted?
Previous convictions for offences involving dishonesty, may be admissible as being relevant to the issue of credibility, whether or not the previous convictions involved untruthfulness.
What D may want to raise bad character ev to suggest in relation to misconduct or guilt in connection with the current offence?
- other person has committed some form of misconduct in connection with the current offence (Court will have regard to the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct)
- Other person guilty of current offence ( Court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time)
