Hearsay

Question 1

What is hearsay?

Answer 1

An out-of-court statement

Adduced as evidence of the truth of the matters stated

Includes — Statements made to, or overheard by, a witness

Question 2

S.114 CJA 2003

Answer 2

An oral / written statement made outside of court, to prove the truth of the matter made in court is not admissible UNLESS it falls under 1 of 4 categories:

s.114(1)(a) - admissible under a statutory hearsay exception

s.114(1)(b) - admissible under a common law hearsay exception preserved by s.118 CJA 2003

s114(1)(c) - admissible by agreement between the parties

s.114(1)(d) - admitted in the interests of justice (inclusionary discretion)

Question 3

s.114(1)(a) - admissible under a statutory hearsay exception - CUCUBaR

Answer 3

C - confessions made by D
U - undisputed witness statements
C - previous inconsistent statements (s.119
U - unavailable witnesses (s.116 CJA 2003)
B - business or other documents (s.117)
a - AND
R - reports prepared by experts

Question 4

s.114(1)(b) - common law hearsay exception preserved by s.118 CJA 2003 - CRER

Answer 4

C - Confessions

R - Res Gestae - things done / said when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

E - expert opinion advice

R - reputation of character

Question 5

S.114(1)(c)

Answer 5

ALL PARTIES AGREE

Question 6

s.114(1)(d) - interests of justice -

Answer 6

INCLUSIONARY DISCRETION- judicial power to admit evidence in the interests of justice

Reliablity of evidence in the statement

Extent of other evidence

Is the maker of the statement reliable?

Question 7

s.115(2) - Statements and Matters states

Answer 7

A statement is any representation of fact or opinion made by a person by whatever means (written or oral statement)

to cause another person to act or a machine to operate on the basis that the matter is as stated

Question 8

s.116 CJA 2003 - Unavailable Witnesses - DUALS

Answer 8

Oral evidence would be admissible if the maker of the statement is satisified on a condition that DUALS is satisifed

IF witnesses are unavailble because they are:
D - dead
U - unfit
A - abroad
L - lost
S - scared

Question 8

Directions to the jury

Answer 8

Jury must be made aware of potential weaknesses in hearsay evidence including:

• Statement not made on oath
• Author not tested in cross-examination
• Specific risks of relying on hearsay
• Draw attention to other evidence, and specifically to any discrepancies between the hearsay and other evidence

Failure to give direction may render a trial unfair/give grounds for appeal – important safeguard for the defence