hearsay Flashcards
cross& tapper def of hearsay
an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted
teper v the queen
the rule against the admission of hearsay is fundamental. it is not the best evidence and is not delievered on oath. the truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tesested by x-examination.
commentary to smith v HM Adv
what a witness said shortly after incident is much more likely to be accurate than recollection at trial a year after. BUT this is not the general view in law of evidence
wilsonv hm adv
the common law gen rule is that hearsay evidence is inadmissible but there is considerable doubt about the scope of the rule and the range of exceptions to it.
CIVIL LAW
HEARSAY common law swept away by the civil evidence scot act
CRIM law
COMMON Law still remains a large part with statute reform under crim procedure 1995 act tidying up parts
CRIM academic discussion focusses on two things
what counts as hearsay (primary/ secondary)
the purpose for which hearsay is admitted.
CRIM primary hearsay
this terminology is confusing and much crit. prim= direct evidence that a statement was made and is admissible for that purpose (irrespective of truth) SOME WRITERS Q IS THIS HEARSAY?
CRIM secondary hearsay
is evidence of the truth of what is contained in a statement made by someone other than a witness. viewed as proper hearsay 1995 reforms relate mainly to secondary.
when can primary hearsay be admitted
evidence used for some other purpose. this purpose could be to prove the fact that a statement was made. could be for another purpose like credibility
when can secondary hearsay admitted
evidence which is used to prove a fact contained within the statement.
CRIM common law rules of hearsay
gen rule where hearsay = inadmissible. any evidence of where witness a gives evidence of what witness b told him. but this rule is subject to various exceptions
Subramaniam v public pros
where the point at issue is whether the statement was made not whether it is true.
evidence is hearsay = inadmissible where you lead evidence of statement to show with purpose= true. BUT where you lead evidence of a statement not to show that a statement is true BUT to show that it was made = ADMISSABLE
McLaren v macloed 1913
where the fact is proved from the statement was not an implied assertion of the maker of the statement this is IMPLIED ASSERTION.
Evidence allowed prostitutes had been overheard that they worked at a certain place. doesn’t matter whether statements true or not just matters that they help show where they were uttered was a brothel other common law systems may reject this as an implied assertion that there was a brothel. OGALVIE MADE THIS LESS CLEAR.
Ogalvie v Hm Adv
police witness wanted to obtain drugs thus tried to meet with ogalivie at particular local. no hearsay. evidence suggested implied assertion which should not have been excluded was there grounds for appeal?
geer v stirlingshire rd
res gestae is the whole thing that happened
o’hara v SMT
road traffic accident driver walked up to bystander and accused bystander of causing accident. admitted as exception to hearsay rule. utterances have to be part of the event themselves
ratten v queen
test shouldn’t be uncertain. one whether part of the event itself. test should be whether the statement was an instinctive reaction rather than a reasoned reflection.
crown wanted to lead evidence of hysterical phone call by mrs ruton whose husband accused of shooting her dead. possible phone call cut off as shot her may have been shot later.
cinci v hm adv
youth hostel heard a commotion. found complainer with cinci beside her. she stated cinci raped me. held not res gustae. as RES GESTAE ARE: SPONTANEOUS UTTERANCES AT THE TIME OF THE INCIDENT IN Q THEY ARE TREATED AS PART OF INCIDENT. EVIDENCE = TRUTH OF WHAT WAS SAID.
O’shea v HM adv
accused of stabbing 2 men 1 fatally. survivor testify with corob came in form of witness. witness saw wife shout about window then get wiped inside by o’ shea. court held RES GESTAE. evidence enough to corb statements part of the case itself does it follow cinci?
Anderson v mcfarlane
week had gone by before the serving girl had been able to tell anyone about her sexual assault.
statement still regarded as a derecenti after a week.
de recenti
reports or statements made shortly after an incident. admissible only to show consistency of witness’s story credibility usually sexual assault.
ahmed v HM Adv
complainer not testify to modify of the statement. to evidence being received that she denies making the statements. if she denies the JURY is entitled to know this.
prior inconsistent statements
if a witness gives evidence in court but has said something different earlier, evidence of that earlier statement can be lead to case light on the witness cred s.1995 263(4) examination of witness
kerr v hm adv
witness= pure + defines pure filtered through the mind of another. sol argues reliable for proceeding Held it would colour result as a precognition opinion
hm adv v mcgachy
police notes do not count as a precognition
beurskens v hm adv
unless the jury cannot rely on the content of the police notes. police notes always admitted if witness signs statement.
hearsay admissible CRIM statute
1995 act s.259-262
Patterson v HM adv
s.259(2)(a) maker of the statement is dead or unable to give evidence.
merely alcoholic x terrible witness 259(2)(a) does NOT apply!
HM Adv v Nulty
s.259(2)(a) maker of the statement is dead or unable to give evidence. mentally ill statement replaced by hearsay. echr. complainer hearsay no direct evidence but from app. moorov corob doc witness saying they committed similar crime thus court held ABONDON.
CRIM if hearsay maker abroad
s.259(2)(b)
s.259(2)(c) 1995 act
maker id but cannot be found after reasonable steps taken CRIM
mclay v HM Adv
a hearsay statement could incrim themselves maker refuses to give evidence on grounds of incrim s. 259(2)(d)
macdonald v hm adv
maker refuses to give evidence for other reasons 1995 s.259(2)(e). child witness in destress unable to continue =refuse. replace by HEARSAY sherrif WRONG child not actually UNABLE. child REFUSED
against interest statements
evidence can be led that a person had at some earlier stage made a statement against his own interests as proof of the truth of that statement. confession dealt with at crim trials
the issue of previous id
witness has earlier id the accused as the person who committed the crime but at the trial says he is unsure/ cant rememeber police can give evidence of earlier positive id
Muldoon v herron
eyewitness id perp then dines in court that accused is who they saw. police officer brought in to testify. acception to the hearsay rul
frew v jessop
description of accused unable to recall in court held bring forward evidence evidence from those police officers concern to ide accused
sangster v hm adv
witness picked out accused in id parade but couldn’t in court evidence from officers conducting parade used instead court held time nothing to do with clear id
jamieson v hm adv
witness couldn’t remember what they had said to the police held to be actual evidence met 260 conditions
echr art 6
the use of hearsay does not by itself infringe on echr art6 art 6(3)(d) accused right to examine any witness against them outlaws hearsay. convention does not take that away. it is admissible as long as it does not deceive supreme court not flexi. allege no breach of hearsay safe guards built into law that maker of the statement cannot x-exam.
beggs V HM Adv
Hearsay is okay as long as there is another form of protection. scots law judge will warn against hearsay use and attack cred.
n v HM adv
court hearsay was admissible under statute common law should proceed unless nulti situ. admission of hearsay does not infringe echr as long as it is NOT the main evidence ie corrob
Al-Khawaja & tahery v UK
gen admissible as safeguards builts into scots law
hm adv v alongi
key thing hearsay should NOT deceive. flexible view of what deceive evidence is. hearsay admissible as long as corob evidence exists
JS V childrens reporter
civil takes a similar line
s.259 CPSA 1995
exceptions to the rule that hearsay evidence is inadmissible.
that the person who made the statement would have been at the time a competent witness.
that there is evidence that would entitle a jury or judge to find that the statement was made from doc or oral evidence in the proceedings as to the statement has direct knowledge of making the statement
s.260 1995 act
admissibility of prior statement. s.1 direct oral evidence.s.2 witness adopts this evidence / statement contained in doc/ competent at time of making statement
s.262 1995 act
what can be included in hearsay statement.
s.1 fact or opinion
does NOT include a PRECOGNITION
Hearsay CIVIL s.2 civil evidence (SCOT) 1988
ADMISSIBILITY OF HEARSAY.
ANY FACT ESTABLISHED BY HEARSAY OF ANY DEGREE SECOND/ PRIMARY. CANNOT LEAD EVIDENCE LEAD EVIDENCE IF NOT COMPITANT
S.3 civil evidence (SCOT) 1988
Statement as evidence as to credibility. in any civil proceedings a statement made otherwise than in the course of the proof by a person who at the proof is examined as to the statement shall be admissible as evidence in so far as it tends to reflect favourably or unfavourably on that person cred. L.gill in davis cannot lead such a statement until witness in q has evidence cannot discredit witness in advance of testimony. lecturer view= f v kennady assures not restricected in which way you use it unless referring to evidence of pregenose
s. 4 civil evidence (SCOT) 1988
leading of additional evidence at any time a person can be recalled as a witnesswhether or not in present in court as he gave evidence initially
be called as an additional witness
s. 9 civil evidence (SCOT) 1988
interpretation
tsb scot v james mills
CIVIL weight of hearsay evidence clearly reluctant to proved by hearsay
k v kennady
civil special circumstances for basis of hearsay evidence (weight of hearsay evidence)
jf v kennady
hearsay admissible provided no other basis for objection to evidence 1988 s.2(1)a
vulnerable witness act 2004 s.24
Anderson v fraser
statements of precognition. evidence site the precognition as a witness to testify against them.
s.9 1988 act
f vkennedy
1988 s.9 statements of precognition. child refused to say anything cant be replaced with another statement. s.2.1.b is hearsay can believe should be consistent. child validly give statement never established thus sherriff wrong. s.24 child always competent. social workers not precognition. not reported with litigation in mind.
js v childrens reporter
grounds for referral hearing established interviews with police and social work parents not accept the grounds. mother claim assault allegation = false . sheriff refused to allow this. appeal child view = hearsay. thus some means for challenging the hearsay were necessary for the parents to get a fair trial. they were denied one.
davies v macguire
previous consistant and inconsistent statements s.3 1988. cant lead such a statement until witness in q has evidence cannot discredit witness in advance of testimony.
