Evidence Flashcards
1
Q
What is Evidence?
A
Material used to prove a Fact in Issue.
2
Q
What are the Facts in Issue?
A
The facts necessary to prove for a Case to win.
3
Q
How can a Fact be Proven?
A
- Admission.
- Written Testimony.
- ID Evidence.
- Live Evidence.
- Real Evidence.
- Expert Evidence.
- Physical Evidence.
- Documentary Evidence.
- Bad Character Evidence.
- Circumstantial Evidence.
- Judicial Notice.
- Mutual agreement by the Parties.
4
Q
What is Identification (“ID”) Evidence?
A
Evidence presented to establish or confirm a Person’s identity as the Perpetrator.
5
Q
What is Live Evidence?
A
Testimony given by a Witness in person, under oath, at Trial, subject to Cross-Examination.
Once a Witness is in the Witness Box, you cannot consult with them until they exit.
6
Q
What is Real Evidence?
A
Physical objects that played a direct role in the event or action being litigated.
7
Q
What is Expert Evidence?
A
Testimony from a specialist in a particular field, providing expert opinion or analysis to assist the Court.
8
Q
What is Physical Evidence?
A
Tangible objects connected to the Case, regardless of direct involvement.
9
Q
What is Bad Character Evidence?
A
Evidence of Misconduct, or a disposition theretoward, on the Defendant’s part, unless:
- It directly relates to the alleged facts of the Charged Offence(s);
- It involves activities connected to the Investigation or Prosecution of the Charged Offence(s); or
- It concerns lies told during Interview.
Such instances can be admitted as Evidence without a Bad Character Application.
Misconduct constitutes the commission of an Offence or other reprehensible (morally blameworthy) behaviour.
10
Q
What is Documentary Evidence?
A
Written or recorded documents submitted as proof.
11
Q
What is a Circumstantial Evidence?
A
Evidence that suggests a fact through inference.
12
Q
What is a View?
A
A Jury visit to the Crime Scene or some object that cannot be brought to Court.
13
Q
What is Judicial Notice?
A
Treatment of things that are indisputably well-known as fact, even if research-assisted.
Jurors are not allowed to do their own research at any time, cannot take notice on generally unknonw matters they happen to know personally.
14
Q
What is the Core Requisites of Admissibilty?
A
Relevance and Fairness.
15
Q
Who decides the Weight of Evidence?
A
The Jury.
16
Q
What are the Ways of Exclude Evidence?
A
- Application for Dismissal.
- Submission of No Case to Answer.
- §76 Application.
- §78 Application.
- §82(3) Application.
- Application for Abuse of Process.
17
Q
What is an Application for Dismissal?
A
A Pre-Trial Application to have the Defendant’s Charges dismissed.
18
Q
When can an Application for Dismissal be submitted?
A
- Once the Defendant is sent to the Crown Court and Served the Evidence relating to the Offence; and
- Before the Defendant submits a Plea.
19
Q
When will an Application for Dismissal be Successful?
A
- There is no evidence the Defendant committed the Crime; or
- The Prosecution evidence, taken at its highest, could not result in a Conviction by a properly-directed Jury.
The Judge must take into account the whole of the evidence and not view matters in isolation from their context or other evidence.
Judicial Review cannot be used to challenge such a decision.
20
Q
What is a Submission of No Case to Answer?
A
A request for the Court to disregard one or more Charges because:
- There is no evidence the Defendant committed the Crime; or
- The Prosecution evidence, taken at its highest, could not result in a Conviction by a properly-directed Jury.
This will take place in the absence of the jury, and if it is unsuccessful, the Jury will not be informed that it took place.
21
Q
When can a Submission of No Case to Answer be given?
A
Once the Prosecution has given its Case.
22
Q
What is a §76 Application?
A
A request to exclude Prosecution Evidence because It was obtained:
- By oppression;
- Under circumstances that render it unreliable.
It is on the Prosecution to prove otherwise beyond a reasonable doubt.
23
Q
What is the Process for Evaluating a §76 Application for Unreliability?
A
- Identify the thing said or done.
- Evaluate whether it would likely render unreliable any Confession given under those circumstances.
- Evaluate whether the Prosecution has proven the Confession was not obtained as a result of the thing said or done.
24
Q
If a §76 Application is successful, precisely what is Excluded?
A
Only the Confession, not the facts discovered or the portions relevant to prove the Defendant speaks or writes in a particular way.
Facts will only be admissible if evidence of how they were discovered is presented.
25
What is a Confession?
**Any statement wholly** or **partly adverse** to the person who made it.
26
What is a §78 Application?
A request to **exclude Prosecution Evidence** that would have an **intolerably adverse effect** on the **Proceedings' fairness**.
## Footnote
**Improperly obtained** Evidence is **not automatically inadmissible**.
27
In deciding whether to Grant a §78 Application, what are the Court's main considerations?
* **How** the **Evidence** was **obtained**.
* **Police compliance** with the **law**, **human rights**, and **Codes of Conduct**.
## Footnote
**Serious breaches** of the Codes, with **considerably adverse effects** on **fairness**, are **likely** to result in **exclusions**.
28
When can a §78 Application be made?
* **Before Trial**;
* At the **start** of **Trial**; or
* Just **before** to **Prosecution** seeks to **admit evidence**.
## Footnote
Where excluded evidence would cause the Prosecution's Case to be fatally weakened, the Application should be made before or at the start of Trial.
29
What will the Court do if there is a Factual Dispute in a §78 Application?
A ***Voir Dire***, where the **Prosecution** must **prove** their version of events **beyond a resonable doubt**.
## Footnote
In a *Voir Dire*, evidence relates only to the disputed facts and is heard in the absence of the jury.
30
What is a §82(3) Application?
A **request** for the Court to use its **common law discretion** to **exclude evidence**.
## Footnote
This only applies to Prosecution Evidence.
31
What is a Turnbull Direction?
A **Direction** to the **Jury** that:
* **Warns** of **special need for caution** before convicting based on ID Evidence.
* **Encourages consideration** of the **circumstances** under which the **ID** was **made**.
* **Remarks** upon any **specific weaknesses** in the ID Evidence.
* **Encourages consideration** of **evidence supporting** the **ID** and suggests what may be used to that end.
## Footnote
Supporting Evidence may include Scientific Evidence, Multiple IDs, Bad Character, Adverse Inferences, or Confessions.
32
What will the Judge Direct the Jury to consider when evaluating the Quality of the Identification?
* **Visibility conditions**.
* **Duration** of **observation**.
* **Distance** from the **Accused**.
* **Length of time** between **observation** and **identification**.
* **Previous observations**, and the **frequency** and **conditions** thereof.
* Degree of **similarity** between the **Witness's description** of the Accused and their **appearance**.
33
When is a Turnbull Direction required?
* When a **Prosecution Witness alleges** to **recognise** the **Defendant**.
* When the **Prosecution's Case rests wholly** or **substantially** on the accuracy of **contested ID Evidence**.
34
As concerns Identification Evidence, at the End of the Prosecution's Case, what must the Judge do?
* **Evaluate** its **quality** and **degree of support** from other Evidence.
* If **both** are found **poor**, the Judge **must stop** the **Case** and **direct** an **Acquittal**.
## Footnote
If the **ID Evidence** is **poor**, but the **Supporting Evidence** is **adequate**, the Judge **may allow** the **Case** to **continue**.
35
When will the Court exercise its Discretion to Exclude Hearsay Evidence?
When its **prejudicial effect outweighs** its **probative value**.
36
What is a Dock Identification?
**ID** by the **Witness** of the **Defendant** for the **first time**, done **in Court**.
## Footnote
This is highly undesirable, because of its prejudicial effect, and thus rarely permitted, mostly in Cases of recognition.
37
What is an Application for Abuse of Process?
A request to **permanently Stay Proceedings** for an **Abuse of Process** that renders it **unfair** or **improper** for the **Trial** to **continue**.
38
What constitutes an 'Abuse of Process'?
* **Prosecuting despite** an **unequivocal promise not to**.
* **Deliberate destruction** of **evidence** that would assist the Defence by the **Prosecution** or **Police**.
* **Misuse** of the **legal process** to **deprive** the Defendant of **legal representation** by the Prosecution.
* **Tricking** or **coercing** the **Defendant** into **committing** an Offence they **would not** have **otherwise** committed.
* **Delay so egregious** that it **causes prejudice** to the Defence, due to **inefficiency** or **deliberate tactics** by the Prosecution.
39
When is an Application for Abuse of Process be Granted?
* The Defendant can **no longer receive** a **fair Trial**; or
* Trying the Defendant would **harm** the **integrity** of the **Criminal Justice System**.
| This must be proven on the **Balance of Probabilities**.
## Footnote
In the Magistrates' Court, a Stay can only be granted for an unfair trial. For issues concerning integrity, Applications must go to the Divisional Court via Judicial Review.
40
What is the Procedure for making an Application to Exclude Evidence?
**Advance Notification:**
* The Defence Statement must raise the issue of admissibility, so that
* The Judge may review it at the Second Hearing and order Skeleton Arguments; which
* Must be Served within 10 working days and responded to within 5 working days.
**Timing:**
* The Application itself can be made at a Pre-Trial Hearing or before opening to the Jury.
* The earlier, the better.
* In the Magistrates' Court:
* §76 Applications are generally heard as preliminary issues; and
* §78 Applications may be heard and ruled on like any other issue at the Magistrates' discretion.
**Voir Dire and Submissions:**
* Where facts are disputed, the Court will hold a Voir Dire to set the record straight.
* Then, the Defence and Prosecution litigate admissibility.
**Ruling:**
* The Judge makes his ruling on admissibility in open court.
41
What is the Evidential Burden?
The obligation to **present sufficient Evidence** to **satisfy** the **Judge** that an **Issue** ought to be **litigated** before the **Jury**.
## Footnote
If you have a Legal Burden to persuade the Jury of a Fact in Issue, you also have an Evidential Burden to persuade the Judge to let you try.
42
When will the Legal and Evidential Burdens detach?
In cases of:
* **Alibi**;
* **Duress**;
* **Mistake**;
* **Intoxication**;
* **Automatism**;
* **Self-Defence**;
* **Loss of Control**; and
* **Diminished Responsibility**.
In all such cases, the **Defence** bears an **Evidential Burden without** a **Legal Burden**.
## Footnote
For example, the Defence need only provide sufficient evidence to show the Judge that Self-Defence is a plausible argument, and no more. The Prosecution must then disprove Self-Defence Beyond a Reasonable Doubt.
43
What are the Main Sources of Bad Character Evidence?
* **Agreed Facts**.
* **Witness Testimony**.
* **Previous Cautions** or **Warnings**.
* **Previous Convictions** in Domestic Courts or Foreign Courts, where the Offence has a Domestic equivalent.
44
Can the Prosecution present an Acquittal as Bad Character Evidence?
* **Yes**. If they believe it is tenable, they can **assert** the Defendant **committed** the **Offence regardless** of the Trial's outcome.
* Equally, a **Defendant** can present **evidence** to **rebut** the **presumption of Guilt** under a **Conviction**.
45
When is Bad Character Evidence Admissible?
For **Defendants:**
* If **all Parties agree**.
* If it is **important Explanatory Evidence**.
* If the **Defendant attacked another's character**.
* If it is given to **correct** a **false impression given** by the **Defendant**.
* If **given** by the **Defendant**, whether **themselves** or during **Cross-Examination**.
* If it is relevant to an **important Matter in Issue** **between** the **Defendant** and **Prosecution**.
* Such Evidence **ought not** be adduced to **bolster** a **weak Case**.
* If it has **substantial Probative Value** concerning an **important Matter in Issue** between **Co-Defendants**.
For **Non-Defendants:**
* If **all Parties agree**.
* If it is **important Explanatory Evidence**.
* If it has **substantial Probative Value**, relevant to an **important Matter in Issue** and is of **substantial importance** to the **Proceedings** as a whole.
## Footnote
**Non-Defendant** Bad Character **Evidence** can be **adduced** by **any Party**.
**Court Leave** is **required** to **admit any** Bad Character **Evidence**, **except** if by way of **Mutual Agreement** or the **Defendant's volition**.
46
Regarding the Admissibility of Bad Character Evidence, what constitutes 'Important Explanatory Evidence'?
Evidence that **without**:
* The **Court** or **Jury** would find it **difficult** or **impossible** to **properly understand** other **Evidence**; and that has
* **Substantial value** for furthering such **understanding**.
47
Regarding the Admissibility of Bad Character Evidence, what constitutes an 'Important Matter'?
A matter of **substantial importance** to the **Case** as a **whole**.
48
Regarding the Admissibility of Bad Character Evidence, what constitutes a 'Matter between the Proscution and Defendant'?
A matter concerning the **Defendant's Propensity**:
* To be **untruthful**, but only where **Dishonesty** is **central** to the Case; or
* To **commit** the **Charged Offence**, namely by adducing **Convictions** for Offences of the **same category** (as per Orders from the SOS) or **description**.
* **Legal** and **factual likeness** are **both important**; and
* **Even if none exists**, Propensity may **still** be **found**.
## Footnote
**Evidence** on Propensity must be **just** and **fair** to **admit**.
49
What is the Test for Admissibility of Bad Character Evidence?
* Does the Defendant’s **history establish** a **Propensity** to **commit** the **Charged Offence**?
* Does the **Propensity** make it **likelier** that the Defendant **committed** the **Charged Offence**?
* Would it be **unjust** or **unfair** to **rely** on **previous Convictions**?
* Would **admitting** the Evidence have an **adverse effect** on the **Proceedings' fairness**?
## Footnote
Note that a single Conviction may suffice to show Propensity if it indicates a pattern of unusual behaviour, and the conduct before or after the Charged Offence may do the same.
50
Is Propensity Cross-Admissible?
* **Yes**. If the **Defendant** faces **multiple Charges**; and
* The established **Propensity** is **relevant** across them;
* The **Prosecution** can **adduce** it.
51
When can a Defendant admit Bad Character Evidence against a Co-Defendant?
* When it goes to a **significant issue** between them; and
* It shows a **Propsensity** to be **untruthful** and **directly impacts** the Co-Defendant's **Defence**.
52
What are the Judicial Instructions to the Jury on Bad Character Evidence?
* To **warn** against assuming **Guilt solely based** on **prior Misconduct**.
* To **clarify** that a **prior Conviction does not automatically indicate guilt**.
* To consider the **Evidence** as **part** of the **larger Case** and **prevent** it from **unfairly prejudicing** their **view** of the Defendant.
53
Regarding the Admissibility of Bad Character Evidence, when is Evidence of 'Substantial Probative Value to a Matter in Issue' and of 'Substantial Importance'?
* Evidence is of **Substantial Probative Value** to a **Matter in Issue** if it concerns:
* A **Disputed Fact**; or
* The **Credibility** of a **Witness**.
* Evidence is of **Substantial Importance** if it can **strongly influence** the **Jury's evaluation** of certain **Evidence** or the **Case** as a whole.
54
What are the Exclusions for Defendant Bad Character Evidence?
* **§78 PACE:** Judges may exclude Prosecution Evidence if it would have a substantially adverse effect on Fairness.
* **§101(3) CJA:** Judges may exclude Evidence by way of Propensity or Attack on Another's Character if it would have a substantially adverse effect on Fairness.
* **§101(1)(d) PACE:** Judges may exclude Evidence by way of a Previous Conviction if it is too remote in time or otherwise unjust to admit.
* **§107 CJA:** Judges may stop the Case if they are satisfied that Evidence is contaminated (unfair or unreliable) such that a conviction would be unsafe if based thereon.
* **§110 CJA:** Judges must state their reasons for admitting or excluding Evidence in Open Court and in the Jury's absence.
## Footnote
The Court can issue a ruling with or without a Hearing, in public or in private.
55
What are the Safeguards concerning Defendant Bad Character Evidence?
* **§73 PACE:** Disputes over Prior Trial outcomes can be settled by a signed Certificate of Conviction (or Acquittal), alongside evidence linking the Defendant to the Trial.
* **§74 PACE:** Prior Convictions are treated as presumptive evidence of Guilt, which the Defendant can rebut on the Balance of Probabilities.
* **§75 PACE:** Documents from Prior Trials can be submitted as evidence in support of §74.
56
What is the Procedure for Admitting Defendant Bad Character Evidence?
**Step 1.A — Deadline, Prosecution Evidence:**
* In the **Crown Court**, Prosecution Evidence must be Served within **10 business days** of the **Plea**.
* In the **Magistrates' Court**, Prosecution Evidence must be Served within **20 business days** of the **Plea**.
**Step 1.B — Deadline, Co-Defendant Evidence:**
* No later than **10 business days** after the **Prosecution discloses** the **Notice materials**.
**Step 2 — Notice:**
* The Prosecution or Co-Defendant must **factually explain** the **Evidence**, **how** it will **prove** it, and **why** it is **admissible**.
**Step 3 — Response:**
* The Defence must reply no later than **10 business days after Service** of the **Notice**.
57
What is the Procedure for Admitting Non-Defendant Bad Character Evidence?
**Step 1.A — Deadline, Prosecution Evidence:**
* As soon as **reasonably practicable**.
**Step 1.B — Deadline, Co-Defendant Evidence:**
* No later than **10 business days** after the **Prosecution discloses** the **Notice materials**.
**Step 2 — Application:**
* The Prosecution or Co-Defendant must **factually explain** the **Evidence**, **how** it will **prove** it, and **why** it is **admissible**.
**Step 3 — Response:**
* The Defence must reply no later than **10 business days after Service** of the **Application**.
58
What is the Rule against Hearsay?
A **prohibition** on introducing any:
* **Statement not made** in **Oral Evidence** during the **current Proceedings**;
* As **proof** of its **content's truth**.
59
Regarding Hearsay, what is a Statement?
**Representations** made by **any Person**, written or otherwise, with the **intention** of **influencing** the **beliefs** or **actions** of **others**.
## Footnote
This covers declarations of **Fact and Opinion**.
60
What is the Test for Hearsay?
* **Identify** the **Fact in Issue** sought to be **proven**.
* **Determine** whether a **Statement** concerning that **Fact** was **made**.
* **Determine** whether the **Maker**, partly or wholly, **intended** the **Recipient** to **believe or act** on the Statement as **true**.
61
What is Original Evidence?
* A **Statement not made** in **Oral Evidence** during the **current Proceedings**;
* Given as **Evidence** of **anything other** than its **content's truth**.
62
What is the Framework for Distinguishing between Hearsay and Original Evidence?
**Step 1 — The Statement:**
* Identify the Statement in quesiton.
**Step 2 — The Message:**
* Identify why the Statement was made what it was trying to directly communicate.
**Step 3 — The Evidentiary Purpose:**
* Identify the Evidentiary Purpose served by adducuing the Statement, such as elucidating:
* The Maker's state of mind.
* The Recipient's state of mind.
* The veracity of a particular Fact.
* The usefulness of a particular piece of Evidence.
* The existence of an association between a Person and a Document.
* So long as the Purpose is not to prove the Statement's contents as true, it is not Hearsay.
* If a Statement must be true in order to achieve its Evidentiary Purpose, it is likely Hearsay.
63
What are the Exceptions to the Rule against Hearsay?
* **§114(1)(c):** Mutual agreement of the Parties.
* **§114(1)(d):** The Court's discretion.
* **§116:** Unavailable Witnesses.
* **§117:** Documentary Hearsay.
* **§118:** Common Law Exceptions.
* **§119:** Previous Inconsistent Statements.
* **§120:** Previous Consistent Statements.
* **§121:** Multiple Hearsay.
| Criminal Justice Act ("**CJA**") 2003.
64
Under §114(1)(d), when will the Court deem it is in the Interests of Justice to admit Hearsay Evidence?
When the **Hearsay's Probative Value outweighs** its **Prejudicial Impact**, considering:
* **Contextual Importance:** The Statement's relevance to the overall case.
* **Maker's Reliability:** The Maker’s credibility and trustworthiness.
* **Supporting Evidence:** Presence of other Evidence on the same Issue as the Statement.
* **Statement Reliability:** The dependability of the Statement's creation and content.
* **Statement Circumstances:** Context and conditions under which the Statement was made.
* **Challenge Difficulty:** Limitations in challenging the Statement due to lack of Cross-Examination.
* **Availability of Oral Evidence:** Ability to obtain Live Testimony and reasons for its absence.
* §114(1)(d) cannot and should not be applied to render §116 nugatory.
## Footnote
Here, the term 'Interests of Justice' concerns a balancing act between:
* The Public Interest in ensuring Justice is served; and
* Ensuring the Defendant receives a Fair Trial.
Sometimes, the Court will admit Hearsay under another provision and §114(1)(d), using the latter as a further safeguard. This is called the Belt-and-Brace Approach.
65
Regarding Hearsay, what are the Conditions for §116?
**Condition 1 — *A Priori* Admissibility:**
* The Maker could have given admissible Oral Evidence on the Fact in Issue.
* Accordingly, the Statement itself must be *a priori* admissible.
**Condition 2 — Identifying the Maker:**
* The Maker is identified to the Court's satisfaction.
**Condition 3 — Legitimate Reasons for Unavailability:**
* The Maker is dead.
* The Maker is gravely, genuinely, and reasonably afeared.
* The Maker cannot be found after a reasonable investigation.
* The Maker is unfit to testify due to a physical or mental condition.
* The Maker is outside the UK and it is reasonably impracticable to secure their attendance.
**Condition 3A — On Fear:**
* 'Fear' is construed widely, and the Court will only give leave if it serves the Interests of Justice. It will weigh:
* The Statement’s contents.
* The utility of any Directions.
* The prejudice caused by exclusion.
* The disputability of the Evidence if admitted.
* All the relevant circumstances.
* The Reliant Party must prove Fear beyond a reasonable doubt.
**Condition 3B — On Causation:**
* Whomever's Case the Evidence would support cannot be a cause of the Maker's unavailability.
66
Under §117, which Types of Document are Admissible?
**Condition 1 — *A Priori* Admissibility:**
* The Statement could have given as admissible Oral Evidence on the Fact in Issue.
* Accordingly, it must be *a priori* admissible.
**Condition 2 — In the Course of Business:**
* The Document, or the relevant par thereof, was created or received in the course of business;
* The Maker had, or may be reasonably supposed to have had personal knowledge of the matters dealt with; and
* All Perons through whom the Document travelled received it in the course of business.
**Condition 2A — For Legal Proceedings:**
* One of the following must also apply if the Statement was prepared for pending or anticipated Proceedings, or for a Criminal Investigation:
* The Maker is dead.
* The Maker is gravely, genuinely, and reasonably afeared.
* The Maker cannot be found after a reasonable investigation.
* The Maker is unfit to testify due to a physical or mental condition.
* The Maker cannot reasonably be expected to recollect the Statement's contents.
* The Maker is outside the UK and it is reasonably impracticable to secure their attendance.
**Condition 3 — Court Exclusion:**
* The Statement will be excluded if the Court doubts its reliability due to:
* Its source;
* Its contents; or
* The context of its creation and transmission.
67
Under §118, what are the applicable Common Law Exceptions?
**§118(1) — Public Information:**
* Information from any of the following sources:
* Published Works concerning matters of a public nature, admissible as evidence of public facts.
* Public Documents created and maintained by Public Officers, admissible as proof of their facts.
* Public Records, admissible as proof of their facts.
* Evidence relating to date and place of birth.
* A Public Document is a Document:
* Concerning a public matter.
* Made accessible to the Public.
* Intended to serve as a permanent recored.
* Made by an individual in a Public Office that is obligated to inquire and document such information.
**§118(2) — Reputation as to Character**.
**§118(3) — Reputation or Family Tradition:**
* Evidence of Reputation or Tradition to prove:
* The identity of any person or thing;
* The pedigree or existence of a marriage; or
* The existence of any public or general right.
**§118(4) — Res Gestae:**
* A Res Gestate Statement is a Statement:
* Made by a Person so emotionally charged that authenticity is beyond doubt;
* Accompanied by an act that can only be properly evaluated as evidence if considered therewith; or
* Related to a physical sensation or a mental state.
* The Court's chief considerations are whether:
* The Event triggered an instinctive Reaction.
* The Event and Reaction are sufficiently proximate.
* The special circumstances suggest dishonesty or misrecollection.
**§118(5) — Confession**.
**§118(6) — Admission by Agent**.
**§118(7) — Common Enterprise:**
* A Statement made by a Party to a Common Enterprise against another Party to the Enterprise.
**§118(8) — Expert Evidence:**
* Permits reference to established knowledge within the Expert's field as a basis for their testimony.
## Footnote
Judicial Direction to the Jury are mandatory if Res Gestae is admitted, explaining the concept and the standard to which it must be satisfied.
68
Under §119, when is a Previous Inconsistent Statement admissible?
* A **Prior Statement** is **proven Inconsistent**.
* The **Witness openly acknowledges** that a Prior Statement is Inconsistent.
69
Under §120, when is a Previous Consistent Statement admissible?
**Condition 1 — The Statement Itself:**
* The Statement must be supported by honest confirmation of belief in its truth.
* The Statement:
* Is made is one of Complaint.
* Was made while fresh in the Maker's mind; or
* Serves to identify or describe a person, object, or place.
**Condition 1A — A Statement of Complaint:**
A Statement of Complaint is one where:
* The Witness claims to be a Victim of the Offence;
* The Offence relates to the Proceedings;
* The Statement is a complaint about conduct that goes to the Offence;
* The Statement was not made under duress or undue influence; and
* Before the Statement is adduced, the Witness gives Oral Evidence on its subject matter.
**Condition 2 — When the Statement can be Used:**
* To rebut an allegation of fabricating Oral Testimony.
* To refresh one's memory of an Event they cannot reasonably be expected to recall.
## Footnote
If used to rebut an allegation of fabridaction, the Jury should be instructed that Prior Statements can be considered true, but that scruity regarding the source is still warranted.
70
Under §121, when is Multiple Hearsay admissible?
* **Mutual Agreement:** All Parties consent.
* **Partial Admissibility:** At least one of the Statements is already admissible.
* **Exceptional Evidentiary Value:** The Probative Value is so high the Interests of Justice demand admission.
71
What are the Statutory Safeguards against Hearsay Evidence?
* **§123:** The right to admit Evidence casting doubt on the Maker's capability.
* **§124:** The right to admit Evidence casting doubt on the Maker's credibility.
* **§125:** The Judge's right to stop the Case if satisfied the Hearsay renders Conviction unsafe.
* **§126:** The Judge's discretion to exclude Hearsay if its Prejudicial Impact outweighs its Probative Value.
* **Mandatory Direction:** Where Hearsay is admitted, the Jury must be reminded:
* That the Statement was not given on oath.
* To scrutinise the Statement with particular care.
* Of the Statement's limitations give the circumstances.
* That the Statement was not tested in Cross-Examination.
72
If Hearsay is a critical to the Prosecution Case, what must the Court consider?
* Whether the **Evidence** is **dependable**.
* Whether it is **necessary** to **admit** the **Evidence**.
* Whether any **counterbalancing measures** are necessary to **mitigate unfairness**.
* Whether the **Defence's inability** to **question** the Maker is **necessary** and **proporionate**.
* Whether a **fair trial** is **feasible** despite the **Witness’s absence**, particularly considering **why** they are **absent**.
