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Ella SQE > CLP - Hearsay* > Flashcards

CLP - Hearsay* Flashcards

1
Q

General rule re hearsay

A

it is inadmissible

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2
Q

2-part test for hearsay

A
  1. Does the evidence fall within the definition of hearsay evidence?
    ○ If yes, then INADMISSIBLE
  2. Does it fall within one of the exceptions to the general rule?
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3
Q

Definition of hearsay - may be admitted if it:

A
  • Is a statement (made by a person)
  • Is not made in oral evidence, and
  • Is tendered to prove a matter stated
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4
Q

What is a statement

A

Any representation of fact or opinion made by a person by whatever means (incl. pictures, sketches etc.)

MUST be made by a person (NOT a computer)

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5
Q

What form must a statement be in?

A

Any - orally, in writing, conduct

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6
Q

What does ‘tendered to prove a matter stated’ mean?

A

Person making statement must make it with intention to either:

  • Cause someone to believe that what is being represented in the statement is true, OR
  • Cause someone to operate on the basis that what is being represented in the statement is true
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7
Q

Can there be more than one intention behind a matter?

A

If so, not necessarily excluded from matter

But it may be

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8
Q

Is a private diary hearsay

A

No

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9
Q

Is CCTV hearsay?

A

No

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10
Q

Can questions be hearsay?

A

No

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11
Q

Are words spoken out of court hearsay?

A

Often admissible as original evidence

Purpose of party adducing evidence is to show that words were spoken rather than that they were true →

not hearsay because it is NOT being admitted as ‘evidence of any matter stated’

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12
Q

If the purpose of adducing evidence of words is to show the effect they had on a person - is this hearsay?

A

No

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13
Q

Are legally significant matters hearsay?

A

No

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14
Q

Are falsehoods hearsay? E.g. where a party adduces evidence of what was said out of court while asserting that it is not true

A

No

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15
Q

Can original evidence be adduced to show the state of mind of maker of statement?

A

Yes

e.g. 999 call admitted to show D’s state of mind at time of call

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16
Q

Evidence which amounts to hearsay will ONLY be admitted if:

A
  1. A statutory provision applies
  2. A common law principle preserved by statute applies
  3. All parties to the proceedings agree to its admissibility, OR
  4. The court is satisfied that it would be in the interests of justice to admit the evidence (using its discretion)
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17
Q

Main statutory provision

A

Evidence may be admissible as hearsay if:

  • the witness who originally made the statement is unavailable, OR
  • if the statement is a business document.
18
Q

Other statutory provision

A

Statement from witness that is not in dispute may be read out in court without witness needing to attend in person

19
Q

Statutory provision

Are previous inconsistent statements admissible?

A

YES - if W admits to having made / is proved to have made statement

20
Q

Statutory provision

Are previous consistent statements admissible?

A

YES - if admitted to rebut a suggestion of recent fabrication or as a recent complaint evidence

21
Q

If a witness is unavailable, can their evidence be admitted as hearsay?

A

Yes - ONLY for ‘first-hand’ hearsay

22
Q

What other requirements are needed for hearsay to be admissible for unavailable witness?

A
  • Oral evidence of the person making the statement would have been admissible had they attended in person (i.e. first-hand hearsay)

-The person who made the statement is identified to the court’s satisfaction (i.e. the court knows who they are)

  • Any of the 5 statutory conditions
23
Q

5 statutory conditions re witness unavailability (any of these should be met - need not be all)

A
  1. Witness is dead
  2. Witness is unfit due to bodily or mental condition
    - must investigate
  3. Witness is outside the UK & is not reasonably practicable to secure their attendance
    - cost balanced against importance of evidence
  4. Witness cannot be found despite reasonably practicable steps being taken
    - ALL steps must have been taken + keeping track
  5. Witness in fear of giving evidence
    - D need not have caused fear
    - only if the court considers statement ought to be admitted in the interests of justice
24
Q

Implications on hearsay of where intimidation of witness by D is either clearly proved or the court believes to a high degree of probability that that is the case

A

D CANNOT complain that the right to a fair trial has been infringed on the basis that the defence could not cross-examine the witness

25
Q

When might statements contained in business documents may be admissible as hearsay evidence?

A
  • Would have been admissible as evidence of a matter stated in oral evidence
  • Was created or received by a person who at the time was acting in their occupation or as a holder of an unpaid or paid office, AND
  • Was supplied by someone who had, or reasonably ought to have had, personal knowledge of the matters
26
Q

Business docs

What if the evidence is multiple hearsay?

A

Each person passing the statement must have done so when acting in their employment or as a holder of an unpaid or paid office

  • MAY BE SAME PERSON
27
Q

Examples of business docs

A

Very wide, includes:

  • Medical records AND
  • Any statement written down by a police officer in the course of duty
28
Q

If the statement was prepared for use in criminal proceedings, what else must apply for a doc to be admitted as hearsay?

A
  • The original witness is unavailable
  • It is unreasonable to expect the witness to remember the matters referred to
29
Q

Is multiple hearsay allowed in any of the common law exceptions

A

No

30
Q

Test for res gestae

A

Was the statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded?

  • statement made as a result of close / intimate connection with events in issue & made contemporaneously with that event
  • spontaneous reaction to event that would have dominated V’s thoughts (unlikely to be concocted)

e.g. 999 call

31
Q

Res gestae

What must be made clear to the jury?

A

They must be satisfied that there was no mistake or concoction on the part of the witnesses as to what has been said to them

32
Q

4 other preserved common law principles

A
  1. Public information
    - e.g. published works, court records, public registers
  2. Evidence of reputation
  3. Common enterprise
    - i.e. from a party in a common criminal enterprise
  4. Body of enterprise
33
Q

What 8 things must the court consider when deciding whether to admit a statement as hearsay in the interests of justice?

A
  1. How much probative value is in the statement (assuming it to be true) or how valuable it is for assisting the court to understand other matters in the case
  2. Whether any other evidence has been, or can be, given on the matter to which the hearsay evidence relates
  3. How important the matter is in which the hearsay evidence relates to in the context of the case as a whole
  4. The circumstances in which the statement was made
  5. How reliable the evidence and maker of the statement appear to be
  6. Whether oral evidence on the matter stated can be given, and if not, why not
  7. How difficult it would be to challenge the statement
  8. The extent to which that difficulty would prejudice the party facing it

Court will need to consider Art 6 in relation to these

34
Q

When does the court have the discretion to exclude otherwise admissible hearsay?

A

If any of the exceptions apply:

  • A business doc etc. is unreliable & court is satisfied statement’s reliability is doubtful
  • By stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence
  • It is superfluous (undue waste of time)
  • It is unfair prosecution evidence (s 78)

If parties do not agree & exceptions do not apply:
- if in interests of justice

35
Q

When do the procedural rules apply?

A

Notice required where a party intends to introduce hearsay evidence under:

  1. Doc prepared in Contemplation of criminal proceedings
  2. Witness unavailable
  3. Interests of justice
  4. Evidence is Multiple hearsay

Mnemonic - CWIM

So rules don’t apply in any other case, incl. common law exceptions

36
Q

What are the procedural rules for admitting or opposing hearsay

A

Must serve notice on court & every other party (by party wishing to adduce OR opposing another party’s app to introduce)

Evidence must be attached

NB: court can dispense with these requirements

37
Q

When must notice be served by either prosecution / defence

A

Prosecution - not more than:
- 20 business days after not guilty plea in MC, or
- 10 business days after not guilty plea in CC

D - as soon as reasonably practicable

NB: court can extend/shorten time limits

38
Q

When must notice be served if objecting to hearsay evidence?

A

Not more than 10 business days after either of the following, whichever happens last:

  • Service of the notice to introduce the evidence
  • Service of the evidence objected to, if that is evidence for which no notice is required OR
  • D pleads not guilty.
39
Q

If hearsay opposed, when will court usually determine admissibility?

A

MC -> case management/pre-trial hearing

CC -> PTPH/specific pre-trial hearing

40
Q

How should jury be directed

A

Jury must be reminded that a hearsay statement that has been admitted at the trial was NOT given on oath and that it was NOT tested in cross-examination

Ella SQE (13 decks)

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