Hearsay Flashcards
What is hearsay?
Hearsay
A statement made out of court and repeated in court to prove the truth of that statement.
3tsage process
Is it a statement outside of court
Did person intend they should believe it
Is it being relied on in court as truth
Hearsay and admissability?
Relevance
- All evidence which is sufficiently relevant to facts in issue is admissible
Excluding evidence
- But all relevant evidence may not be admissible. If an exclusionary rule applies it does not matter how relevant the evidence is, it will be inadmissible.
Hearsay
- The rule against it, states that a statement made out of court may not be presented in evidence as proof of its contents.
- General rule is its inadmissible
- Does the evidence fall into definition of hearsay? If yes then it is prima facie inadmissible
- Does it fall within one of the exceptions to the general exclusionary rule.
Fair trial?
UK supreme court and ECtHR have considered the effect of hearsay on fairness and principles that emerged were:
- The UK statutory framework for admission of evidence of absent witness is sufficient, properly applied to provide a free trial.
- Court must be satisfied there is a sufficient basis for absence of witness.
- It will be harder for court to be satisfied if they are the sole or decisive witness.
- Where it is critical to the case, whether there can be a fair trial depends on 3 things:
- Whether there is a good reason to admit evidence pursuant to CJA
- Whether the evidence can be shown to be reliable
- The extent to which counterbalancing measures have properly been applied.
CJA hearsay?
s.114 CJA provides hearsay is only admissible if
- any provision of this statutory provision makes it admissible
- Any rule of law preserved by s.118 makes it admissible
- All parties agree to it being admissible
- The court is satisfied that it is in interests of justice for it to be admissible.
Statements and matters stated
- S.115 – a statement is any representation of fact or opinion made by whatever means.
- A matter states it one to which this chapter applies if the purpose or one of the purposes of the person making the statement appears to the court to have been
- To cause another person to believe the matter
- To cause another person to act pr machine to operate on the basis that the matter is as stated
Is it hearsay?
Is it hearsay?
R v Twist 2011
1 – identify what relevant fact it is sought to prove
2 – ask whether there is a statement of that matter in communication
- If no then question of hearsay arises
3- if yes ask whether it was one of the purposes of the maker of communication that the recipient should believe that matter or act it as true
- If yes, its hearsay
Hearsay issues and possible exceptions?
Private diary – whatever written in it cannot be hearsay. This is because no intention on the part of the maker of the statement that any other person should believe anything.
CCTV - no issue of hearsay because it was created by a device and no human input
Questions – court in Twist thought no issue of hearsay could arise.
In twist the point of contention was text messages
- Applying s.115
- To show effect of words – in genera if purpose of adducing evidence is to show effect that the words had
- Legally significant words – if they have significance as a matter of law
- Falsehoods – no hearsay where a party adduced evidence of what was aid whilst asserting it was not true
Hearsay and original evidence
- Very often words spoken out of court will be admissible as original evidence. In many cases the purpose of party adducing the evidence will be to show that the words were spoken rather than they were true.
- Can also be adduced to show the state of mind of the maker of the statement.
Hearsay exceptions?
Hearsay may be admissible if:
- The witness is unavailable s116
- It is a business document s117 – court has discretion to exclude if reliability is doubtful
- It is in interests of justice to admit it
Witness is unavailable?
Witness if unavailable
S116 CJA
- (2) The conditions are:
- (a) that the relevant person is dead;
- (b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
- (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable
- to secure his attendance;
- (d) that the relevant person cannot be found although such steps as it is reasonably
- practicable to take to find him have been taken;
- (e) that through fear the relevant person does not give (or does not continue to give) oral
- evidence in the proceedings, either at all or in connection with the subject matter of the
- statement, and the court gives leave for the statement to be given in evidence.’
S116 requires that the maker of the statement is identified – so it cannot be used for anonymous hearsay.
Unfitness to be a witness
- no medical requirement just they are unfit because of reasons
Witnesses outside of UK – or witnesses cannot be found – cost is a relevant factor
Fear – its widely construed in the interests of justice.
- no requirement that the fear should be caused by the defendant
- authorities differ as to how the court should approach an enquiry as to whether the reason for absence is fear.
- In Davies 2007 – court are ill advised to seek to test the basis for fear by calling the witness before them
- In later cases – Shabir 2021 – CA took view that every effort should be made to get the witness to attend to test issue of fear.
Intimidation
- Where intimidation us proved, the defendant cannot complin that the right to a fair trial has been infringed upon on the basis that the defence was not able to cross examine the witness.
Arguments against admission
- S78 – it would have an adverse effect on proceedings if defendant is denied main point to cross examination.
- Defence would want it to not go in, because no opportunity to see demeanour
Witnesses preliminary issues?
Competence of a witness
- ‘a witness is competent is a person may lawfully be called to testify’
- Generally, anyone is a competent witness – few exceptions
- The defendant/ accused – not competent to be a prosecution witness.
- Children and persons with a disorder or disability – age is NOT the determining factor – only test is whether a child can understand questions, and can give comprehensible answers.
- Spouse/civil partner – a spouse or civil partner is competent to give evidence
- Deaf of speech impairs – these are competent so long as they can understand the solemnity of taking the oath or affirmation
Compellability of witnesses?
- Some witnesses can be compelled to give evidence, most can but some cannot.
- The defendant is not competent for prosecution and so clearly cannot be compelled.
- Children and persons with disorder – if competent then can be compelled
- Special rules – diplomats, sovereign’s and bankers
- Spouses/civil partners – can be compelled to give evidence for their spouse or civil partner but only for the prosecution is offence charged against their partner is PACE S80
- (a) Assault on, or injury, or threat of injury to that spouse or partner (i.e., domestic violence)
- (b) Assault on, or injury, or threat of injury, to a child under 16
- (c) A sexual offence against someone under the age of 16
- (d) Attempts, conspiring, aiding and abetting any of the above
Opinion evidence and experts?
- Witnesses are called upon only to be witnesses of fact – analysis of those facts is argued by advocates and ultimately for jury to decide what inferences they draw and what conclusions they come to.
- Court will receive opinions from witnesses only if
- The opinion is in relation to commonplace occurrences which the witness’s perception appears relevant and proper – e.g., like remarking that someone is drunk
- If the witness is an expert – treated slightly different to other witnesses – consider their role as being neutral and objective – jury is not obliged to accept expert evidence even if it is not contradicted
Privilege?
Against self-incrimination
There is a general principle under common law that courts will uphold a witness right to refuse to answer questions or disclose documents would make that person liable to incriminate themselves.
A defendant right to refuse was removed from common law by criminal evidence act 1898
Legal professional privilege
Litigation privilege
Legal advice privilege
Examination of witnesses?
Oaths and affirmations
As a general rule – all witnesses must ether take an oath or make an affirmation - only real exception is where evidence may be received unsworn in the case of children and those of unsound mind
Examination in chief
Forms of questioning
- Questions should be non-leading
- Evidence added from a leading question may be inadmissible or carry less weight
- The big exceptions are that leading may be allowed on issues that are not in dispute or where the witness has been deemed hostile
Memory refreshing
- Statements made out of court are considered to be hearsay – but can be sued if
- The statement may be read out if contents pf statement is agreed
- The witness can ask to refresh their memory from their statement
- In cross examination on a previous inconsistent statement
Hostile witnesses?
- If the witness is then called to give evidence and gives an account inconsistent with their original statement to the point the judge forms the view the witness is not ‘desirous of telling the truth’, the party calling that witness may apply to the judge to treat them as hostile.
- A party is free to cross examine a hostile witness and put their previous statement to them as the truth of the matter. Any inconsistent statement presented to a witness can be used to prove the truth of its contents notwithstanding that the statement was (or might have been) deemed as inadmissible hearsay before the witness contradicted it in evidence.
Use of previous consistent statements?
A repeated statement does not become more reliable just because it is repeated.
NOW THERE ARE EXEPTIONS
There are some exceptions, ie where the court will hear the evidence of an earlier consistent
complaint or statement. Where an exception exists, one needs to consider if the earlier consistent
statement can be used to prove the statement itself is true, or only to prove the consistency of the
person who made the earlier statement. We will note what use the consistent statement can be
put to under each section. The main exceptions are as follows:
* Res gestae
* Suspect’s response to police allegation
* Complaints
* Recent fabrication
