Criminal Practise 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?
Hearsay Summary
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.
Hearsay definition
- A statement made out of court.
- not made in oral evidence,
- that is relied on as evidence of a matter in it.
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 overarching factors in deciding whether hearsay can be given?
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.
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?
a) dead
b) unfit due to physical or mental condition (to give evidence not just to appear)
c) They’re outside the UK and its not reasonably practicable to secure attendance
d) the relevant person cannot be found despite reasonably practicable steps having been taken
e) 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 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
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.
What are the s.118 common law exceptions
- Confession or mixed statement
- Evidence admitted as part of res gestae (statement made at same time as event_
- public information
- Evidence of reputation
- Statements in furtherance of a common enterprise
- Body of expertise
What is Res Gestae
Statement made at the same time as the event, where someone is so overwhelmed that they could not be lying.
Spontaneity of the statement meant any possibility of concoction/colluding can be disregarded.
What are the Ackner criteria in relation to res gestae?
- The possibility of concoction or distortion
- Circumstances of the statement
- So closely associated with the event
- Check no special features in the case = distortion
- ordinary fallibility of human recollection
When are previous INCONSISTENT statements admissible as evidence under s.119
where:
- a previous inconsistent statement that a witness ADMITS to having made;
- a previous inconsistent statement that a witness is PROVED to have made.
When are previous CONSISTENT statements admissible as evidence under s.120
to rebut a suggestion of recent fabrication.
What is a multiple hearsay?
Where A testifies to what B said C told B.
When is multiple hearsay admissable?
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
Can the opposing party challenge the credibility of the person in the hearsay evidence?
Yes.
