Evidence: Hearsay

Question 1

What is hearsay evidence?

Answer 1

A witness repeats things said by others outside of court and is used to try to convince the court of the truth of what was said. “A statement not made in oral evidence in the proceedings… as evidence of any matter stated”.

Question 2

What is the test for hearsay evidence?

Answer 2

Test for Hearsay:

• Evidence is a statement
• Evidence is made out-of-court
• Maker’s purpose is to cause another person to believe that statement to be true
• Evidence does not come from witness’ personal experience

Question 3

What is the exclusion rule against hearsay evidence?

Answer 3

Evidence should not, unless absolutely necessary, be produced in formats that repeat relevant facts and information gained from other sources not available to face scrutiny (such as cross-examination) at trial.

Question 4

Why is hearsay typically excluded?

Answer 4

To prevent witnesses speaking about things that are not their personal experience. If they are asking the jury to accept something as true that they did not experience themselves, then they are likely to be giving hearsay evidence.

Question 5

What are examples of statements containing hearsay evidence?

Answer 5

Oral statements, documents, other representations such as sketches and created images. N.B: automatically created recordings (CCTV footage, audio recordings) are real evidence and not covered by the rules against hearsay.

Question 6

How is original evidence different to hearsay evidence?

Answer 6

Things said outside of court and heard by witnesses are admitted, not to prove the matter stated (the truth of what was said) but to prove simply that they were said.

These statements are original evidence not hearsay evidence. Does not need to be admitted to under any grounds.

Examples - Threats (e.g to establish duress or self-defence), lies, misstatements, offers, current state of mind

Question 7

What are the grounds to admit hearsay evidence?

Answer 7

Hearsay will only be admissible if it fits within the grounds set out below and will have to comply with procedural requirements (CJA 2003 and common law):

a) [Unavailable maker] The maker is unavailable (s116 CJA)
b) [In business document] The statement is contained in a business document (s117 CJA)
c) [Admissible previous inconsistent statement] It is an admissible previous inconsistent statement by a witness (s119 CJA)
d) [Admissible previous consistent statement] It is an admissible previous statement by a witness (s120 CJA)
e) [Res Gestae - Admissible at common law] It is admissible at common law (s118 CJA) - res gestae (whether the event was so unusual, startling or dramatic as to dominate the thoughts of the victim, so that the maker’s utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.)
f) [In the interests of justice to admit] It is in the interests of justice to admit it (s114(1)(d) CJA)

Question 8

What are the procedural requirements for admitting hearsay evidence?

Answer 8

1) Notice served on the court and other party within the prescribed time limits (28 days after NGP in Magistrates’ Court, 14 days after NGP in Crown Court)
2) Notice sets out the hearsay evidence in question and explains why it ought to be admissible
3) If the other party does not object, it will be deemed admissible
4) If the other party objects, the party seeking to adduce it must apply on notice and within the prescribed deadlines to the court to have the issue determined
5) The court will then determine the matter having heard representations from both parties

Question 9

What is the Interests of Justice test to admit hearsay evidence?

Answer 9

To apply the test under s114(1)(d), the court must have regard to the following factors:

D.R.O.P C.O.I.L

Difficulty involved in challenging the statement
Reliability of the statement / maker
Other potential evidence
Probative value

Circumstances in which the statement was made
Oral evidence
Importance
Likely to prejudice