CLP 4 - hearsay Flashcards
What is the two step method when dealing with possible hearsay?
1) does the evidence fall within the definition of hearsay evidence?
2) If so, does it fall within one of the exceptions?
What are the hearsay references
- s.114 admissibility
- s. 115 defines hearsay
- s. 116 witness not available
- s.117 business documents
- s.118 common law admissions
- s. 119 inconsistent statements
- s.120 consistent statements
- s.121 multiple hearsay witness statements (117, 119, 120).
What is Hearsay?
- A statement made out of court,
- that the person who made it intended another to believe,
- subsequently tendered in evidence,
as proof of the matter stated.
What are the rules given by s.114(1) CJA 2003?
Hearsay may be given if:
a) its allowable by statute
b) it is allowable by s.118
c) all parties agree, or
d) the court is satisfied that it is in the interests of justice for it to be admissible.
What was the rule laid down in R v Twist in relation to hearsay?
In relation to hearsay:
a) Identify the relevant fact it is sought to prove
b) Ask whether there is a statement of THAT MATTER in the communication
c) If yes, ask whether it was one of the purposes of the maker of the communication that the recipient should believe THAT MATTER or act upon it as true.
Is evidence of words spoken out of court admissible as original evidence or hearsay?
Original evidence is that the words were spoken, not that they were true. Original evidence is no hearsay. E.g evidence that slanderous words were spoken but not that they are true
In what circumstances may hearsay be admissible under CJA 2003?
- the witness is unavailable - s.116
- it is a business document s.117 (unless court thinks unreliable)
- common law exceptions s.118
- it is in the interests of justice to admit it (s.114(1)(d).
When is a witness deemed to be unavailable s.116?
- dead
- poor bodily or mental condition (to give evidence not just to appear)
- outside the UK and its not reasonably practicable to secure his attendance
- cannot be found despite reasonably practicable steps having been taken
- fear of giving evidence and court gives leave
Does the maker of hearsay need to be identified?
Yes
Does the ‘fear’ need to be fear of the defendant?
No - but there must be a causative link between the fear and the failure to give evidence.
Can a defendant complain if they intimidated a witness into not attending and so hearsay was used instead?
No
What is covered by hearsay in business documents
- includes paid and unpaid business
What additional rules apply to documents prepared for criminal proceedings?
- rules 1 - 5 of s.116 (witness unavailable)
OR
- person cannot reasonably be expected to recall the matter dealt with in the statement
When can the court exclude evidence which would normally be allowable under s.177 (business documents)?
court is satisfied that the statement’s reliability is doubtful.
What should the court consider when deciding whether hearsay evidence should be admitted in the interests of justice under s.114(d)
a) value of evidence
b) what other evidence is available for the matter
c) how important is the matter in the case as a whole
.
d) the circumstances in which the statement was made
e) how reliable the maker of the statement appears to be
f) How reliable the evidence of the making of the statement appears to be
.
g) whether oral evidence of the matter stated can be given
.
h) the amount of difficulty in challenging the statement]
i) the extent to which that difficulty would prejudice the party facing it.
