CLP 8 hearsay

Question 1

What is the two step method when dealing with possible hearsay?

Answer 1

1) does the evidence fall within the definition of hearsay evidence?

2) If so, does it fall within one of the exceptions?

Question 2

Hearsay Summary

Answer 2

A statement is hearsay (and unallowable under s.114) if
- it is made out of court,
- the person making it intended for another person to believe it and
- it is adduced as evidence of the matter stated.

The exceptions to the rule include:
- the witness unavailable s.116
- it is a business document s.117
- it is in the interests of justice to admit it.

Question 3

What is Hearsay?

Answer 3

• 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.

Question 4

What are the overarching factors in deciding whether hearsay can be given?

Answer 4

• whether the evidence can be shown to be reliable
• Whether there’s a good reason to admit the evidence pursuant to CJA 2003,
• The extent to which counterbalancing measures can be applied e.g. summing up directions to jury.

Question 5

What are the rules given by s.114(1) CJA 2003?

Answer 5

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.

Question 6

What was the rule laid down in R v Twist in relation to hearsay?

Answer 6

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.

Question 7

Is evidence of words spoken out of court admissible as original evidence or hearsay?

Answer 7

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

Question 8

In what circumstances may hearsay be admissible under CJA 2003?

Answer 8

• 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).

Question 9

When is a witness deemed to be unavailable s.116?

Answer 9

a) dead
b) poor bodily or mental condition (to give evidence not just to appear)
c) They’re outside the UK and its not reasonably practicable to secure his attendance
d) the relevant person cannot be found despite reasonably practicable steps having been taken
e) fear of giving evidence and court gives leave

Question 10

Does the maker of hearsay need to be identified?

Answer 10

Yes

Question 11

Does the ‘fear’ need to be fear of the defendant?

Answer 11

No - but there must be a causative link between the fear and the failure to give evidence.

Question 12

Can a defendant complain if they intimidated a witness into not attending and so hearsay was used instead?

Answer 12

No

Question 13

What additional rules apply to documents prepared for criminal proceedings?

Answer 13

• rules 1 - 5 of s.116 (witness unavailable)

OR

• person cannot reasonably be expected to recall the matter dealt with in the statement

Question 14

When can the court exclude evidence which would normally be allowable under s.177 (business documents)?

Answer 14

court is satisfied that the statement’s reliability is doubtful.

Question 15

What should the court consider when deciding whether hearsay evidence should be admitted in the interests of justice under s.114

Answer 15

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.

Question 16

What are the s.118 common law exceptions

Answer 16

• public information
• Evidence of reputation
• Res gestae
• Confessions
• Statements in furtherance of a common enterprise
• Body of expertise

Question 17

What is Res Gestae

Answer 17

Where someone is so overwhelmed that they could not be lying

Question 18

When are previous INCONSISTENT statements admissible as evidence under s.119

Answer 18

where:
- a previous inconsistent statement that a witness ADMITS to having made;
- a previous inconsistent statement that a witness is PROVED to have made.

Question 19

When are previous CONSISTENT statements admissible as evidence under s.120

Answer 19

to rebut a suggestion of recent fabrication.

Question 20

What is a multiple hearsay?

Answer 20

Where A testifies to what B said C told B.

Question 21

When is multiple hearsay admissable?

Answer 21

s.121
a) either statement was admissible under s.117 (business document), 119 (inconsistent statement) or 120 (consistent statement);

b) all parties agree

c) the court consider the evidence so high that the interests of justice require the statement to be admissible

THEREFORE - no multiple hearsay for s.116 (witness not available), or common law exceptions under s.118.

Question 22

Can the opposing party challenge the credibility of the person in the hearsay evidence?

Answer 22

Yes.

Question 23

When can the judge stop a case in relation to hearsay? And how?

Answer 23

• the case wholly or mainly depends on hearsay evidence,
• that evidence is so unconvincing that the defendant’s conviction would be unsafe.
  HOW?
• dismiss the jury and order a retrial
• direct the jury to acquit the defendant

Question 24

When can a judge dismiss superfluous hearsay? under s.126?

Answer 24

where the admission would result in an undue waste of time

Question 25

What directions should a judge give in respect of hearsay?

Answer 25

• that the evidence was not given under oath or tested
• the risks of relying on hearsay should be pointed out
• where quality is poor, jury should consider the usefulness of it.

Question 26

Does notice need to be given for hearsay?

Answer 26

Yes for:

s.114 (interest of justice)
s.116 (witness unavailable)
s.117 (document prepared for criminal proceedings)
s.121 (multiple hearsay)

NO notice is required for common law exceptions preserved by s.118

Question 27

What must be included in a notice for hearsay?

Answer 27

a) Identify the hearsay evidence
b) set out facts relied on that make it admissible
c) explain how those facts would be proved if disputed
d) explain why the evidence is admissible
The evidence must be attached to the notice if not already served

Question 28

What are the time limits for a notice of hearsay?

Answer 28

Prosecution must serve notice on court and every party not more than:

• 28 days after a not guilty plea in the Mag court; or
• 14 days after a not guilty plea in the Crown Court

A defendant must serve notice as soon as reasonably practicable

Question 29

What are the time limits to objecting to hearsay evidence?

Answer 29

Must serve application on court and every party:

• as soon as reasonably practicable
• and in any event 14 days following the latest of:
  
  • service of the notice to introduce the evidence
  • service of the evidence for which no notice is required
  • the defendant pleads not guilty.

Question 30

What must an application to oppose hearsay evidence explain?

Answer 30

• which facts are disputed
• why the evidence is not admissible
• Any other objection to the evidence

Question 31

Is a defendant competent to be a prosecution witness?

Answer 31

No - therefore cannot be compelled by prosecution. Unless they have plead guilty when they may be called as a witness by the prosecution against a co defendant.

Question 32

Is a defendant competent to be a DEFENSE witness for another defendant?

Answer 32

Yes but they cannot be compelled to do so.

Question 33

Are children/ those with a disorder competent to be witnesses?

Answer 33

Yes, if:
- they understand the questions AND
- they can give comprehensible answers

If competent, they can be compelled

Question 34

Can a spouse be competent witness

Answer 34

Yes

Question 35

Can Deaf or speech impaired people be witnesses?

Answer 35

Yes as long as they understand the solemnity of taking oath

if competent, they are compellable

Question 36

When can a spouse be compelled to give evidence for the prosecution?

Answer 36

Only for:
- domestic violence
- assault or injury to a child under 16
- sexual offence against someone under 16
- attempts, conspiring, aiding and abetting of any of the above.

Question 37

When can a witness give an opinion rather than a fact?

Answer 37

• the opinion is in relation to a common place occurrence about which the witness’s perception appears relevant and proper
• they’re an expert.

Question 38

Can a witness (who is not the defendant) refuse to give evidence if it might incriminate him?

Answer 38

Yes

Question 39

When can a jury be instructed to accept expert opinion as correct?

Answer 39

when the expert opinion and all the other evidence leads inevitably to only one conclusion.

Question 40

What are the two types of legal professional privilege to consider

Answer 40

Litigation privilege, and
legal advice privilege

Question 41

when can a child take an oath / affirmation?

Answer 41

have sufficient appreciation of the solemnity of the occasion and the particular responsibility to tell the truth.

Question 42

What is the remedy if one refuses to take an oath/affirmation

Answer 42

contempt of court

Question 43

Can questions be leading for examination in chief?

Answer 43

no - the response may be inadmissible or carry less weight

Question 44

what is a hostile witness?

Answer 44

one that the judge forms the view that they are not desirous of telling the truth

Question 45

What does a hostile witness allow?

Answer 45

Witness statement can be put to the witness and inconsistencies used to prove the truth of the statement notwithstanding the statement was not made under oath in court

Question 46

Can complaints about an allegation be admissible?

Answer 46

Yes.

Question 47

Can an accused point to an earlier statement if they are accused of a recent fabrication?

Answer 47

Yes

Question 48

Can questions be leading for cross-examination?

Answer 48

Yes

Question 49

Can police witness statements be admitted into evidence?

Answer 49

Normally no. But if the evidence being given in court departs materially from the statement, the earlier witness statement can be called to evidence.

Question 50

When would the court allow evidence to be admitted in relation to a collateral issue (i.e. one not directly related to the matter at hand).

Answer 50

If it shows a witness may be biased

Question 51

what is the only defence that places the burden of proof on the accused?

Answer 51

Insanity and Diminished responsibility.

Question 52

What are a solicitors duty to the court?

Answer 52

• do not attempt to mislead your clients, the court, or others including:
• knowing your client is innocent
• suggesting something to a witness you know cannot be true
• suggesting something you know not to be true.

Question 53

how do you address the judge in the crown court?

Answer 53

Your honour

Question 54

how do you address the judge in the supreme court?

Answer 54

My lord / lady

Question 55

What are the hearsay references

Answer 55

• s.114 admissiblity
• 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).