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
