Evidence (hearsay)

Question 1

What is the legal burden of proof?

Answer 1

The burden of proof is on the prosecution to prove the case beyond reasonable doubt

Question 2

What is the evidential burden?

Answer 2

The burden to provide sufficient evidence for the judge to put a case or defence to the jury

• applies to defence if they raise a defence that requires evidence and prosecution

Question 3

What is general rule on admissibility of evidence?

Answer 3

All evidence which is sufficiently relevant to the facts in issue is admissible

• subject to exclusionary rules (e.g., hearsay)
• evidence is relevant to the facts if it is able to prove or disprove a fact

Question 4

What is hearsay (definition)?

Answer 4

A statement made out of court, that the statement maker intended another to believe, subsequently tendered in evidence as proof of the matter stated

• made out of court
• the person who made it intended another person to believe it
• it is adduced as evidence of the matter stated

Question 5

What is the key question to consider as to whether an out of court statement is hearsay?

Answer 5

What is the party seeking to prove?
- hearsay must be tendered in evidence as ‘proof of the matter stated’

Question 6

What is the test for determining if a statement is hearsay?

Answer 6

1. What is the relevant fact that the party calling evidence is seeking to prove?
2. Is there a statement of that matter or fact in the communication?
   - is it about the relevant facts?
3. Did the person making the communication intend that the recipient should believe that matter

Question 7

What is the general rule on admissibility of hearsay?

Answer 7

General rule is that hearsay is inadmissible in a criminal trial

Question 8

When is hearsay admissible?

Answer 8

• It is allowed under CJA (gateways);
• by agreement of all parties
• interests of justice

Question 9

What are the gateways for admitting hearsay evidence under CJA?

Answer 9

• witness is unavailable
• business documents
• statements prepared for use in criminal proceedings where witness is unavailable or statement given a long time ago
• previous inconsistent statements
• previous consistent witness statements
• res gestae (statements made in the act)
• confession
• common entreprise
• public information
• expert opinion

Question 10

What are the exceptions for when a witness is unavailable where hearsay may be admissible?

Answer 10

(s116)
- dead
- outside the country
- fear
- physically unable to attend
- mentally or physically incapable

The person seeking to use the evidence must prove one of these reasons

If there are no grounds to argue against its admission (one of the exceptions in s116 applies) = admissible

Question 11

What is the case if the reason is that the witness is afraid to give evidence?
- fear of a witness

Answer 11

The statement can only be used if it is in the interests of justice (judge decides this)

The court must grant leave if the reason is due to fear
- interests of justice
- special measures to alleviate fear

Question 12

When can statements in business documents be admitted as hearsay under CJA?

Answer 12

If
- relevant to matter in proceedings
- document created during their job or course of trade, business or profession
- personal knowledge
- information received during course of trade or job

Question 13

What are the three different kinds of “res gestae” statements that can be admitted as hearsay?

Answer 13

• emotionally overpowered
• statements accompanying an act
• statements relating to a physical or mental statement

Common example is recording of a 999 call

Question 14

How can the credibility of hearsay evidence be challenged?

Answer 14

Evidence that would have been used against the witness regarding their credibility if they were available at court, and any evidence that could have been used under cross-examination can be admitted to challenge the hearsay given

Question 15

When must notice of hearsay evidence be given?

Answer 15

If admitting hearsay evidence under:
- under interests of justice
- witness unavailable
- multiple hearsay
- document prepared for criminal proceedings

Then notice must be given to the other party and the court of intention to use such hearsay

Question 16

How does the defence or CPS oppose the use of hearsay?

Answer 16

Send notice to other side and the court

The prosecution must serve notice not more than:
a) 20 business days after a not guilty plea in MC
b) 10 business days after not guilty plea in CC

A defendant must serve notice as soon as reasonably practicable

Question 17

Hearsay statement vs statement made by defendant relevant to the defence

Answer 17

If the defendant is repeating something to demonstrate that it was said / happened / give an explanation = not hearsay

Example: defendant is trying to explain why they did not say something to the police; or the defendant states that they were threatened and that is why they committed the crime

These are statements made relevant to the defence - not hearsay

Question 18

Examples of evidence which are not hearsay

Answer 18

• private diaries
• CCTV
• questions - where there is no statement of matter

Question 19

When can a witness statement be read out in court (exception to inadmissibility of hearsay)

Answer 19

If the witness statement is not objected to by the other party (defence) the statement can be read out in court and the witness is not required to attend

Question 20

What can the defence do to protest against the inclusion of hearsay?

Answer 20

The defence can seek to exclude it on the basis that it would cause unfairness to proceedings (s78 PACE)

Question 21

Are evidence of confessions admissible?

Answer 21

Yes - preserved under common law rule exception to inadmissibility of hearsay

Question 22

What is the procedure for a party opposing the introduction of hearsay evidence?

Answer 22

Party objecting to introduction of hearsay must sere an application on the court and other party as soon as reasonably practicable, and in any event not more than 10 business days

Question 23

Are all statements made outside of court hearsay?

Answer 23

NO - the statement must be to prove a fact in the statement

Question 24

Is this statement hearsay: D claims that they were forced to commit the crime by a gang who threatened to hurt their family. D wants to rely on this threat at trial.

Answer 24

This is not hearsay and it is admissible and relevant to the defence

• purpose of repeating the statement is to support defence
• the relevant matter sought to prove –> defendant’s state of mind
• it is not trying to establish if the threat was true

Question 25

What is the rare exception where the legal and evidential burden become detached?

Answer 25

Self-defence:
- Does not create legal burden
- Judge requires some evidence from defence to put the issue before the jury
- Defence needs to raise some evidence
- Prosecution must disprove self-defence to prove the use of force was unlawful

Duress:
- If sufficient evidence is raised to leave duress as a live issue, prosecution must disprove it beyond reasonable doubt

Alibi:
- Prosecution retain burden of disproving alibi

Question 26

What is multiple hearsay?

Answer 26

Hearsay within hearsay, whre statement is relayed through more than one person before getting to court - X testifies to what Y said Z told Y

Not admissible to prove fact that an earlier hearsay statement was made unless:
a) Either of statement is admissible
b) All parties agree, or
c) Interests of justice - court is satisfied, taking into account how reliable the statement is, that the the value is so high as to be in the interests of justice

Question 27

Common law exception to admissible hearsay - Public Information

Answer 27

Admissible public information includes:
- published works dealing with matters of public nature such as dictionaries and maps
- public documents
- records such as court records

Question 28

Common law exception - evidence of reputation

Answer 28

Admission of evidence of reputation as to character, to prove character

Question 29

What are the safeguards surrounding hearsay?

Answer 29

• Opposing party can put into evidence anything that could have been put to witness to challenge credibility in cross-examination
• Judge can stop case if it depends wholly/partly on hearsay and evidence is so unconvincing that conviction would be unsafe
• Court can refuse to admit statement if case for exclusion substantially outweighs case for admitting it
• Remind jury that hearsay was not given on oath nor tested in cross-examination

Question 30

What must a party objecting introduction of hearsay evidence do?

Answer 30

Serve application on court and other party asap and not more than 10 business days

Application explains:
a) which facts the party disputes
b) why evidence is not admissible
c) any other objection

Question 31

What must be satisfied for a police incident log created in contemplation of a criminal investigation to be admissible hearsay?

Answer 31

• police officer must be acting in course of business, trade, profession; and
• the witness cannot reasonably be expected to have any recollection of the information (that is logged)

Question 32

When can a statement prepared for use in criminal proceedings be admitted as hearsay under CJA?

e.g., a police incident log

Answer 32

• the person who made the statement is unavailable (dead, missing, lost, etc); or
• the person cannot be expected to remember any of the matters dealt with in the statement as it was such a long time ago

E.g., a police officer taking a statement from a witness about the offence. The witness is now dead, but the witness statement that was prepared was never signed by them