Criminal Procedure (Hearsay Evidence)

Question 1

What is the rule against hearsay?

Answer 1

A statement made out of court may not be presented as proof of its contents; hearsay is generally inadmissible.

Question 3

What are the stages to tackle potential hearsay evidence?

Answer 3

Stage 1: Determine if the evidence is hearsay and therefore prima facie inadmissible.

Stage 2: Check if it falls within any exceptions.

Question 4

Why is hearsay evidence typically excluded?

Answer 4

Hearsay evidence risks unfairness to the defendant, as it cannot be tested by cross-examination.

Question 5

What is the three-part test for determining whether evidence is hearsay in R v Twist (2011)?

Answer 5

1. Identify the relevant fact sought to prove.
2. Check if the communication includes a statement of that fact.
3. If it does, determine if the purpose of the maker of the communication was that the recipient, or any other person, should believe that matter or act upon it as true.

If yes, it is hearsay….

Question 6

How does Section 115 CJA 2003 define a ‘statement’ and ‘matters stated’?

Answer 6

A ‘statement’ is any representation of fact or opinion.

A ‘matter stated’ is when the purpose is to cause another to believe or act on it.

Question 7

Is a private diary considered hearsay?

Answer 7

No, private diaries are not hearsay as they are not intended to be read by others for belief or action.

Question 8

Why is CCTV evidence not hearsay according to s.115(2)?

Answer 8

CCTV is not hearsay as it is not created by a person but by a device, thus no issue of hearsay arises.

Question 9

When does asking a question not qualify as hearsay?

Answer 9

A question with no statement of a matter, e.g., ‘Can I have drugs?’ is not hearsay as it is not a statement.

Question 10

What is ‘original evidence’?

Answer 10

Evidence of words spoken to show that they were said, not that they are true - this is not hearsay.

For example, evidence of threats such as ‘if you don’t do what I say, I will harm you’ > if adduced to show that the threat was made, not that the maker of the threat would actually cause harm to the person addressed, it is original evidence/

Question 11

When are words ‘legally significant’ and not hearsay?

Answer 11

If words themselves have legal significance,

e.g., an offer of sexual services for money is admissible to show that the premises were spoken is a brothel because the making of offer is itself part of the definition of “brothel”.

Question 12

Are words used in evidence to show effect on an individual hearsay?

Answer 12

If the evidence is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay.

Question 13

What does s.114(1) CJA 2003 say about hearsay exceptions?

Answer 13

Hearsay is admissible if:
* permitted by statutory provision;
* agreed by all parties;
* or in the interests of justice.

Question 14

What are the conditions under s.116 for an unavailable witness?

Exceptions

Answer 14

Heasay is admissible if the witness is

• dead
• unfit to be a witness
• outside the United Kingdom and it is not reasonably practicable to securetheir attendance
• cannot be found although steps have been taken that are reasonably practicable
• does not give oral evidence through fear

Question 15

What does ‘unfitness’ mean in terms of hearsay exceptions?

Answer 15

Unfitness refers to inability to testify in court, which can include trauma, not just medical incapacity.

Question 16

How is ‘attendance not reasonably practical’ interpreted?

Answer 16

Costs is a relevant factor, balanced against the importance of evidence.

It should be read as referring to the impracticality of securing attendance in person or video link

Question 17

Can fear from a source other than the defendant justify hearsay admission?

Answer 17

Yes, but only if it’s in the interest of justice, and the party seeking admission did not provoke the fear.

Question 18

What are the requirements for business documents under s.117?

Exceptions

Answer 18

A statement contained in a business document can be admissible of any matter stated if:

• Oral evidence would be admissible as evidence; and
• The document was created or received in the course of their occupation; and
• The person who supplied the information contained in the statement had personal knowledge of the matters dealt with

If preapred for the proceedings, additionally….
* the witness is unavailable; or
* the witness could not be expected to remember the matters referred to

For example, medical records, statements written down by a police officer in the course of duty would be admissible.

Question 19

What is the ‘interest of justice’ exception under s.114(1)(d)?

Exception

Answer 19

Court considers factors like probative value, importance, reliability, and challenging difficulty.

S.114(1)(d) should be treated with caution. It should not be used to circumvent the other provisions.

Question 20

What does s.119 CJA say about previous inconsistent statements?

Exception

Answer 20

Hearsay is admissible if a witness admits or is proved to have made an inconsistent statement.

For example, D was identified by witnesses who made detailed statements. At trial the witnesses said they were now uncertain as to the ID.

Question 21

When are previous consistent statements admissible under s.120 CJA?

Exception

Answer 21

Any previous statement made by a witness is admissible as proof of its contents if it is adduced in evidence to rebut an allegation of recent fabrication as a result of the witness being cross-examined on a memory-refreshing document

Question 22

What are public information exceptions under common law?

Answer 22

Published public records, age, birth date, and place are admissible as hearsay under common law.

Question 23

How is reputation evidence treated under hearsay exceptions?

Answer 23

Evidence of reputation can be admitted to prove character.

Question 24

What is the ‘res gestae’ exception?

Answer 24

Statements made under overpowering emotion, accompanying actions, or related to mental/physical states are admissible.

For example, useful in domestic violence cases. What is said by C in a 999 call will be admissible under this limb.

Question 25

How are confessions treated under hearsay law?

Answer 25

Confessions by the accused are admissible as to their truth.

Question 26

When are statements in a common enterprise admissible?

Answer 26

Statements made to advance a joint enterprise are admissible against all alleged co-defendants.

Question 27

How is ‘body of expertise’ used in hearsay evidence?

Answer 27

Experts may rely on expertise in their field for admissible evidence.

Question 28

What is multiple hearsay rule under s.121?

Answer 28

Information relayed through multiple people before being recording is admissible only under specific conditions:

• Either of the statements is admissible under section 117 (business documents), section 119 (inconsistent statements) or section 120 (other previous statements); or
• All parties agree; or
• The court is satisfied that the value of the evidence in question is so high that the interests of justice require the later statement to be admissible for that purpose.

Question 29

What does s.124 allow regarding hearsay credibility challenges?

Answer 29

Opposing parties can introduce evidence challenging the credibility of hearsay, as if in cross-examination.

Question 30

What are the three safeguards that can be used to oppose hearsay?

Answer 30

• S.124 > an opposing party to put into evidence anything that could have been put to the witnesses to challenge credibility in cross examination.
• s.125 allows the judge to stop a case where it depends wholly or partly on hearsay evidence that is so unconvincing that a conviction would be unsafe.
• s.126 allows the court to refuse to admit a statement as evidence of a matter stated if satisfied that the case for excluding the statement substantially outweighs the case for admitting it.

Question 31

When can a judge stop a case dependent on hearsay?

Answer 31

Under s.125, if the hearsay evidence is unconvincing enough to make a conviction unsafe.

Question 32

What must the jury be reminded about hearsay evidence?

Answer 32

Hearsay was not given on oath or cross-examined, with risks and limitations pointed out.

Question 33

What procedures are required for introducing hearsay under CPR Rules Party 20?

Answer 33

Notice must be served under s.114, s.116, s.117, or s.121, with specific timeframes based on court type.

• 20 business days after not guilty plea in magistrates court; or
• 10 business days after a not guilty plea in crown court

Question 34

Do the common law hearsay exceptions need notice?

Answer 34

Common law exceptions preserved in s.118 do not require notice.

Question 35

When must an objection to hearsay introduction be filed?

Answer 35

Serve an application to the court no more than 10 business days after whatever of the following happened last:

• service of notice to introduce
• Service of the evidence objected to; or
• The defendant pleads not guilty

Question 36

What defines witness competence?

Answer 36

Competence is the legal ability to testify, e.g., defendants can’t be prosecution witnesses, but can testify in their own defense.

Question 37

Can the defendant be a prosecution witnesses.

Answer 37

• The defendant cannot be a prosecution witnesses.
• Where there are multiple defendants, none can be prosecution for the witness.
• However, If D pleads guilty, D is competent for the prosecution.

Question 38

Is the defendant a competent witness for the defence?

Answer 38

Yes, D can give evidence on their own behalf as part of the defence.

Question 39

When is a child or disabled person a competent witness?

Answer 39

The age is not determinate. The test is whether the person can: (i) understand questions; and (ii) give comprehensible answers.

Question 40

Are spouses competent witnesses?

Answer 40

Spouses are always competent to give evidence for any party.

Question 41

Who is a compellable witness?

Answer 41

Most witnesses are compellable; - made to be a witnesses. However there are exceptions…

• D cannot be compelled by the prosecution.
• Spouses and civil partners can be compelled only for the prosecution can only be compelled for certain offences

Question 42

When are children and disabled perople compellable witnesses?

Answer 42

Children and persons with a disorder or disability are compellable if they are competent

Question 43

When are spouses and civil partners compellable for the prosecution?

Answer 43

Generally not compellable.

Only compellable if the offence concerns…
* Assault/threat to that spouse
* Assault/Injury to child under 16
* Sexual offence against someone under 16
* Attempts, conspiracy, aiding, abetting the above

Question 44

Is a spouse/civil partner compellable as a witnesses for their spouse?

Answer 44

Yes - A spouse/ civil partner can be compelled to give evidence for their spouse/civil partner.

Question 45

What are the conditions for admissible expert opinion?

Answer 45

Only common observations or technical matters by qualified experts, with jury discretion to accept or reject.

Question 46

What are the two main types of witness privilege?

Answer 46

Privilege against self-incrimination and legal professional privilege (litigation and legal advice).

The witness can refuse to answer if to do so would make them liable to incriminate themselves. However, they cannot claim privilege for another person (e.g. spouse) nor to protect themselves from civil liability.

Question 47

Are oaths and affirmations required for witnesses?

Answer 47

Generally, yes; however, children and unsound mind witnesses may give unsworn evidence if needed.

Question 48

What types of questions are allowed in examination-in-chief?

Answer 48

Non-leading questions unless addressing undisputed facts or a hostile witness.

Question 49

When is memory refreshing allowed?

Answer 49

Statements out of court are hearsay. Witness statements are seen by lawyers and judges but NOT juries.

Unlike civil trials, WS are not taken as accepted for the E-I-C. The witness has to give evidence afresh on stand. However, the witness can ask to refresh their memory from the statement. If read out and ‘refreshed’ the jury are directed that it is as if the evidence came from the witness box - this is rare

Question 50

What types of questions are allowed in cross-examination?

Answer 50

Advocates may ask leading questions that contain factual statements that indicate what answer the advocate wants the witness to make.

Witnesses should generally only deal with facts.

Question 51

Do courts admit witness statements into evidence as writing?

Answer 51

Courts do not generally admit into evidence a witness statement (e.g. a police witness statement) but it can become admissible if the witness in the box departs materially from the statement.

Question 52

Can a party call peripheral evidence according to the principle of finality on collateral matters?

Answer 52

A party cannot call evidence to try to prove a peripheral matter, such as the credibility of something a witness said on a less crucial issue.

Question 53

A text message states ‘X is having a great day’ with a picture of a knife.

X is stabbed to death.

Is this hearsay?

Answer 53

No it is an implied assertion and implied assertions are not ‘a statement to cause another to believe the matter’ therefore are not hearsay and asmissible.