Hearsay Flashcards
Rule against hearsay
A statement made out of court may not be presented in evidence as proof of its contents.
The general rule is that hearsay is inadmissible which is an example of an exclusionary rule.
Two questions to ask for hearsay?
- Does the evidence fall within the definition of hearsay evidence? (if yes, prima facie inadmissible)
- Does it fall within one of the exceptions to the general exclusionary rule?
Hearsay and fair trial
Hearsay was historically excluded because maker of the statement is not in court so the quality of the evidence cannot be tested by cross examination.
Number of common law exceptions developed which are now (mostly) codified.
Obvious risk of unfair trial when hearsay is admitted especially if the hearsay evidence is important to the prosecution’s case. ECHR article 6.
Where hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three critical factors:
1) Whether there is a good reason to admit evidence pursuant to the CJA 2003
2) Whether the evidence can be shown to be reliable
3) The extent to which counterbalancing measure have been properly applied, e.g. exclusionary discretion, proper directions to the jury in summing up
Hearsay: exceptions
S114 - hearsay is admissible if it falls within one of the exceptions
a) any other statutory provision makes it admissible (witness is unavailable, business document)
b) any rule of law preserved by section 118 makes it admissible (public info, evidence of reputation, res gestae, confessions, statements of furtherance of common enterprise, body of expertise)
c) all parties to the proceedings agree to it being admissible
d) the court is satisfied that it is in the interests of justice for it to be admissible
Hearsay: s114 exceptions
S114 - hearsay is admissible if it falls within one of the exceptions
a) any other statutory provision makes it admissible
b) any rule of law preserved by section 118 makes it admissible
c) all parties to the proceedings agree to it being admissible
d) the court is satisfied that it is in the interests of justice for it to be admissible
Test for if something is hearsay
- Identify what relevant fact (matter) it is sought to prove
- Ask whether there is a statement of that matter in the communication
- If yes, whether it was one of the purposes (not necessarily only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true
- yes: hearsay
- no: not hearsay
Not hearsay
i) Private diary: anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. There is no intention on the part of the maker of the statement that any other person should believe anything
ii) CCTC: it’s not human output
iii) questions: asking a questions is not hearsay
e.e text message asking drug dealer for drugs was allowed as evidence he was a drug dealer
iv) to show the effect of words - not hearsay if the purpose is show the effect of the words on the person to whom they were said rather than show the truth of what was said
v) legally significant words - if the words spoken have significance as a matter of law (eg offer to pay for sex may go to definition of a brothel)
vi) falsehoods - no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true e.g. prosecution can given evidence that to show that d gave a false alibi
Hearsay and original evidence
Sometimes evidence of words spoken out of court will be admissible as original evidence.
Original evidence: a relevant statement adduced for some reason other than to prove that the statement is true.
Purpose of the party adducing the evidence is to show that the words were spoken not that they were true. This is not hearsay because it is not being admitted as evidence of any matter stated.
e.g. threat to harm someone being adduced to show that the threat was made - not that the maker would carry out that threat
Exceptions to rules against hearsay (CJA 2003)
May be admissible if:
- s.116: the witness is unavailable
- s.117: it is a business document (court can still exclude if they feel it is unreliable)
- s.114(1)(d): it is in the interests of justice to admit it
Where a witness is unavailable
Will be admissible where:
a) oral evidence given by that person would be admissible
b) the person who made the statement is identifiable
c) of five conditions are satisfied:
1) person is dead
2) person is unfit because of bodily or mental condition
3) outside UK and not practicable to secure attendance
4) person cannot be located and reasonably practicable steps have been taken to find him
5) the person has been put in fear (and court gives leave)
Unfit witness
refers to ability to give evidence once in court (not ability to attend court).
No requirement it be a medical condition. Could be trauma of sexual assault.
Outside UK and cannot be located
Whether steps are reasonably practicable - court will consider cost and importance of evidence
Also should consider videolink.
Fear
Fear includes fear of death or injury of another person or of financial loss. Does not
need to be caused by the defendant.
Must be link between the fear and the failure to give evidence.
Leave may be given only if the court considers the statement ought to be admitted in the interests of justice having regard to:
- statement’s contents
- risk that its admission or exclusion will result in unfairness to any party in the proceedings
- special measures could be made
- anything else which is relevant
Business documents
Wide definition, includes: medical records, statements written down by police officers etc.
Statement contained in a document is admissible if:
- oral evidence given in the proceedings would be admissible as evidence of that matter
- the requirements of subsection (2) are satisfied
2:
- document or part w statement was created or received by a person int he course of a trade, business, profession or other occupation
- person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with
- person whom info was supplied from received info in the course of a trade, business, profession or other occupation
Exclude hearsay that would be admissible s.177
Can exclude evidence admissible under 117 (business documents) if believes reliability is doubtful in view of:
- contents
- source of info contained in it
- way in which or circumstances in which the information was supplied or received
- way in which or circumstances in which the document concerned was created or received
Hearsay: s114 - admission in the interests of justice
When deciding if in the interests of justice to admit the evidence the court will consider:
- how much probative value the statement has
- what other evidence there is in relation to the matter
- how important the matter is in the context of the case as a whole
- circumstances in which the statement was made
- how reliable the maker of the statement appears to be
- how reliable the evidence of the making of the statement appears to be
- whether oral evidence of the matter stated can be given and if not why it cannot
- the amount of difficulty involved in challenging the statement
- extent to which that difficulty would be likely to prejudice the party facing it
Note: this should not be used as a fall back
Hearsay: common law exceptions
- Public information
- Evidence of reputation
- Res gestae
- Confessions
- Statements in furtherance of common enterprise
- Body of expertise
Hearsay: public information
includes:
- published works dealing with matters of a public nature such as dictionaries and maps
- public documents such as public registers
- records such as court records and public treaties
Hearsay: evidence of reputation
Preserves common law rule allows the admission of evidence of reputation as to character to prove character
Hearsay: res gestae
A statement is admissible as evidence of any matter stated if:
- the statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded
- statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement
- the statement relates to a physical sensation or a mental state (such as intention or emotion)
Usually some sort of warning to jury that they must be satisfied with the statement will be given.
Good for use in cases such as domestic violence where complainant refuses to give evidence - can show 999 call
hearsay: confessions
Confessions are admissible hearsay
Hearsay: statements in furtherance of common enterprise
Common law rule that the statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise.
Hearsay: body of expertise
Expert witness may draw on a body of expertise. Otherwise it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributes to the field.
Hearsay: previous statements
S119:
previous statements which are inconsistent can be admissible of evidence of the matter stated.
S120:
previous consistent statements can be admitted to rebut suggestions of recent fabrication or complaint evidence.
s124 CJA 2003
Allows the opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination.
s. 125 CJA
Allows the judge to stop a case where the case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that considering its importance to the case it would be unsafe to convict.
Judge must either discharge jury and order retrial or acquit.
s.126 CJA 2003
allows court to refuse to admit a statement as evidence of a matter stated if the court is satisfied that the case for excluding (undue waste of time) outweighs the case for admitting it (taking into account the value of the evidence)
Directing jury
Jury must be reminded that a hearsay statement that has been admitted at the trial was not given in oath and was not tested in cross-examination.
If concerned with quality of something - should direct the jury to the limitations of that evidence.
Hearsay procedure
Notice is required when a party introduces evidence under:
s.114(1)(d)
s. 116
s. 117(1)(c)
s. 121 (multiple hearsay)
Hearsay notice
Notice must be served on the court and on every other party. Must:
a) identify the hearsay evidence
b) Set out the facts relied on that make the evidence admissible
c) Explain how those facts will be proved if they are disputed
d) Explain why the evidence is admissible
Note: evidence must be attached to the notice if it has not already been served
Prosecution must serve notice not more than:
- 20 business days after a not guilty plea in the magistrates court; or
- 10 business days after a not guilty plea in the Crown Court
Opposing the intro of hearsay evidence
Must serve notice on court and every other party as soon as reasonably practicable and not more than 10 business days after either;
- Service of the notice to introduce the evidence
- Service of the evidence objected to, if that is evidence for which no notice is required; or
- Defendant pleads not guilty
Application must explain:
- which, if any, facts set out in the notice to introduce the evidence the party disputes
- Why the evidence is not admissible
- Any other objection to the evidence
