CLP - Hearsay*

Question 1

General rule re hearsay

Answer 1

it is inadmissible

Question 2

2-part test for hearsay

Answer 2

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?

Question 3

Definition of hearsay - may be admitted if it:

Answer 3

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

Question 4

What is a statement

Answer 4

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)

Question 5

What form must a statement be in?

Answer 5

Any - orally, in writing, conduct

Question 6

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

Answer 6

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

Question 7

Can there be more than one intention behind a matter?

Answer 7

If so, not necessarily excluded from matter

But it may be

Question 8

Is a private diary hearsay

Answer 8

No

Question 9

Is CCTV hearsay?

Answer 9

No

Question 10

Can questions be hearsay?

Answer 10

No

Question 11

Are words spoken out of court hearsay?

Answer 11

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’

Question 12

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

Answer 12

No

Question 13

Are legally significant matters hearsay?

Answer 13

No

Question 14

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

Answer 14

No

Question 15

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

Answer 15

Yes

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

Question 16

Evidence which amounts to hearsay will ONLY be admitted if:

Answer 16

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)

Question 17

Main statutory provision

Answer 17

Evidence may be admissible as hearsay if:

• the witness who originally made the statement is unavailable, OR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

Question 18

Other statutory provision

Answer 18

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

Question 19

Statutory provision

Are previous inconsistent statements admissible?

Answer 19

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

Question 20

Statutory provision

Are previous consistent statements admissible?

Answer 20

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

Question 21

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

Answer 21

Yes - ONLY for ‘first-hand’ hearsay

Question 22

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

Answer 22

• 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

Question 23

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

Answer 23

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

Question 24

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

Answer 24

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

Question 25

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

Answer 25

- 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

Question 26

Business docs What if the evidence is multiple hearsay?

Answer 26

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

Question 27

Examples of business docs

Answer 27

Very wide, includes: - Medical records AND - Any statement written down by a police officer in the course of duty

Question 28

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

Answer 28

- The original witness is unavailable - It is unreasonable to expect the witness to remember the matters referred to

Question 29

Is multiple hearsay allowed in any of the common law exceptions

Answer 29

No

Question 30

Test for res gestae

Answer 30

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

Question 31

Res gestae What must be made clear to the jury?

Answer 31

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

Question 32

4 other preserved common law principles

Answer 32

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

Question 33

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

Answer 33

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

Question 34

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

Answer 34

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

Question 35

When do the procedural rules apply?

Answer 35

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

Question 36

What are the procedural rules for admitting or opposing hearsay

Answer 36

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

Question 37

When must notice be served by either prosecution / defence

Answer 37

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

Question 38

When must notice be served if objecting to hearsay evidence?

Answer 38

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.

Question 39

If hearsay opposed, when will court usually determine admissibility?

Answer 39

MC -> case management/pre-trial hearing CC -> PTPH/specific pre-trial hearing

Question 40

How should jury be directed

Answer 40

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