Hearsay, confession, and character evidence

Question 1

Definition of hearsay

Answer 1

A statement, not made in oral evidence, that’s relied on as evidence of a matter in it

Question 2

What are the 5 conditions for hearsay being admissible where the witness is unavailable to attend court?

Answer 2

1. witness is dead,
2. witness is unfit to be a witness due to physical/mental condition
3. witness is outside the UK and it’s not reasonably practicable to secure attendance
4. witness can’t be found, although reasonably practicable steps were taken
5. witness refuses to give oral evidence through fear, and court gives leave to use the statement

Question 3

2 common law exceptions to excluding hearsay

Answer 3

1. evidence of confession
2. evidence as part of res gestae (statement made contemporaneously with event)

Question 4

What are the 4 situations where the Part 20 procedure for admitting hearsay be used?

Answer 4

A. admitting hearsay is in interest of justice
B. witness is unavailable to attend court (s.116)
C. evidence is multiple hearsay
4. either party relies on s.117 to admit statement prepared for use in criminal proceedings

Question 5

What is the consequence of the Part 20 procedure applying?

Answer 5

The party wishing to rely on the hearsay/oppose the other relying on it must give notice of intention to the court and other parties

Question 6

Definition of a confession

Answer 6

Any statement wholly/partly adverse to the person making it, whether made to a person in authority or not, and whether made in words or otherwise

Question 7

What are the 2 conditions for a confession to be admissible?

Answer 7

• it’s relevant, and
• it’s not excluded by the court

Question 8

2 grounds of challenging admissibility of a confession which D admits to having made

Answer 8

1. it was obtained by oppression of the person who made it
2. it was unreliable (caused D to confess for reason other than that he actually committed the offence)

Question 9

What is the ground for the general power to exclude prosecution evidence?

Answer 9

Court can exclude evidence if admitting it would have such adverse effect on fairness of proceedings that it shouldn’t be admitted

Question 10

What is a significant statement?

Answer 10

Something D said to police staff outside of formal interview that appears capable of being evidence

Question 11

When must the Magistrates court hold a voir dire?

Answer 11

If D challenges admissibility of a confession on the grounds of oppression or unreliability
If D only challenges it on the ground of adverse effect on fairness, it doesn’t have to be held

Question 12

Definition of bad character

Answer 12

Evidence of or disposition towards misconduct, expect evidence related to the offence with which he’s charged

Question 13

Definition of misconduct

Answer 13

Commission of an offence or other reprehensible behaviour

Question 14

When is bad character evidence relevant to an important matter in issue between D and the prosecution?

Answer 14

• D has propensity to commit offence of that kind
• D has propensity to be untruthful

Question 15

Which 2 types of past offences can be used to establish propensity to commit that type of offence?

Answer 15

• offence of the same description
• offence of the same category

Question 16

When else can a past offence be used to show propensity?

Answer 16

When there are significant factual similarities between the prior and current offences

Question 17

When can a prior offence NOT be used to show propensity?

Answer 17

If the court is satisfied it’d be unfair to admit it given the time that’s passed since conviction

Question 18

D’s prior convictions are not admissible to show propensity to be untruthful, unless…

Answer 18

1. the manner in which the prior offence was committed shows the propensity (eg. lied), or
2. D pleased not guilty to a prior offence by was convicted after trial at which D testified and wasn’t believed

Question 19

When MUST evidence of propensity to commit offence/be untruthful be excluded?

Answer 19

If it’d have an adverse effect on the fairness of proceedings

Question 20

Are spent offences inadmissible?

Answer 20

No, but they’re likely to have an adverse effect on proceedings (if this would be the case, they must be excluded)

Question 21

In which 2 gateways does the court have power to exclude evidence under the CJA? (MUST exclude it if it’d have adverse effect on fairness)

Answer 21

D. it’s relevant to issue between D and prosecution (propensity to commit offence/be untruthful)
G. D attacked another person’s character

Question 22

Can D use evidence of bad character of another person automatically?

Answer 22

No- must always ask for court’s permission (unless both parties agree to admitting it)

Question 23

What are the 3 grounds for admissibility of bad character evidence for a person other than D?

Answer 23

1. it’s important explanatory evidence,
2. it has substantial probative value, or
3. all parties agree to admitting it

Question 24

When is another person’s misconduct admissible?

Answer 24

If there are sufficient factual similarities between each instance of misconduct

Question 25

How is admissibility of another person’s prior convictions decided when D blames that person for the offence?

Answer 25

The court considers to what extent the evidence shows that the same person was responsible for each offence