Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

evidence > hearsay > Flashcards

hearsay Flashcards

1
Q

cross& tapper def of hearsay

A

an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

teper v the queen

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

commentary to smith v HM Adv

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

wilsonv hm adv

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

CIVIL LAW

A

HEARSAY common law swept away by the civil evidence scot act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

CRIM law

A

COMMON Law still remains a large part with statute reform under crim procedure 1995 act tidying up parts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

CRIM academic discussion focusses on two things

A

what counts as hearsay (primary/ secondary)

the purpose for which hearsay is admitted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

CRIM primary hearsay

A

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?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

CRIM secondary hearsay

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

when can primary hearsay be admitted

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

when can secondary hearsay admitted

A

evidence which is used to prove a fact contained within the statement.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

CRIM common law rules of hearsay

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Subramaniam v public pros

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

McLaren v macloed 1913

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Ogalvie v Hm Adv

A

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?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

geer v stirlingshire rd

A

res gestae is the whole thing that happened

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

o’hara v SMT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

ratten v queen

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

cinci v hm adv

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

O’shea v HM adv

A

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?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Anderson v mcfarlane

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

de recenti

A

reports or statements made shortly after an incident. admissible only to show consistency of witness’s story credibility usually sexual assault.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

ahmed v HM Adv

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

prior inconsistent statements

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

kerr v hm adv

A

witness= pure + defines pure filtered through the mind of another. sol argues reliable for proceeding Held it would colour result as a precognition opinion

26
Q

hm adv v mcgachy

A

police notes do not count as a precognition

27
Q

beurskens v hm adv

A

unless the jury cannot rely on the content of the police notes. police notes always admitted if witness signs statement.

28
Q

hearsay admissible CRIM statute

A

1995 act s.259-262

29
Q

Patterson v HM adv

A

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!

30
Q

HM Adv v Nulty

A

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.

31
Q

CRIM if hearsay maker abroad

A

s.259(2)(b)

32
Q

s.259(2)(c) 1995 act

A

maker id but cannot be found after reasonable steps taken CRIM

33
Q

mclay v HM Adv

A

a hearsay statement could incrim themselves maker refuses to give evidence on grounds of incrim s. 259(2)(d)

34
Q

macdonald v hm adv

A

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

35
Q

against interest statements

A

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

36
Q

the issue of previous id

A

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

37
Q

Muldoon v herron

A

eyewitness id perp then dines in court that accused is who they saw. police officer brought in to testify. acception to the hearsay rul

38
Q

frew v jessop

A

description of accused unable to recall in court held bring forward evidence evidence from those police officers concern to ide accused

39
Q

sangster v hm adv

A

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

40
Q

jamieson v hm adv

A

witness couldn’t remember what they had said to the police held to be actual evidence met 260 conditions

41
Q

echr art 6

A 
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.
42
Q

beggs V HM Adv

A

Hearsay is okay as long as there is another form of protection. scots law judge will warn against hearsay use and attack cred.

43
Q

n v HM adv

A

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

44
Q

Al-Khawaja & tahery v UK

A

gen admissible as safeguards builts into scots law

45
Q

hm adv v alongi

A

key thing hearsay should NOT deceive. flexible view of what deceive evidence is. hearsay admissible as long as corob evidence exists

46
Q

JS V childrens reporter

A

civil takes a similar line

47
Q

s.259 CPSA 1995

A

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

48
Q

s.260 1995 act

A

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

49
Q

s.262 1995 act

A

what can be included in hearsay statement.
s.1 fact or opinion
does NOT include a PRECOGNITION

50
Q

Hearsay CIVIL s.2 civil evidence (SCOT) 1988

A

ADMISSIBILITY OF HEARSAY.

ANY FACT ESTABLISHED BY HEARSAY OF ANY DEGREE SECOND/ PRIMARY. CANNOT LEAD EVIDENCE LEAD EVIDENCE IF NOT COMPITANT

51
Q

S.3 civil evidence (SCOT) 1988

A

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

52
Q

s. 4 civil evidence (SCOT) 1988

A

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

53
Q

s. 9 civil evidence (SCOT) 1988

A

interpretation

54
Q

tsb scot v james mills

A

CIVIL weight of hearsay evidence clearly reluctant to proved by hearsay

55
Q

k v kennady

A

civil special circumstances for basis of hearsay evidence (weight of hearsay evidence)

56
Q

jf v kennady

A

hearsay admissible provided no other basis for objection to evidence 1988 s.2(1)a
vulnerable witness act 2004 s.24

57
Q

Anderson v fraser

A

statements of precognition. evidence site the precognition as a witness to testify against them.
s.9 1988 act

58
Q

f vkennedy

A

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.

59
Q

js v childrens reporter

A

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.

60
Q

davies v macguire

A

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.

evidence (20 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions