Hearsay Evidence Flashcards
Under s114 - what are the 4 categories of admissible evidence which is not made orally in court
- any provision of statute
- rule of common law preserved by s118
- all parties agree
- interests of justice
What is the definition of hearsay evidence?
statement relied upon as evidence of any matter stated - matter stated = purpose (or one of) on part of statement maker to cause person to believe the matter or a person or machine to behave as though it were as stated
What is definition of a statement?
any representation of fact or opinion made by any person - including sketch, photofit etc
What can a witnesses previous statement be admitted to prove if not fact of the matter?
(in)consistency - prohibited if entirely self serving
How is mechanically produced evidence treated?
as not ‘made by a person’ then not hearsay, any witness who has seen such footage/heard a recording will also be treated as having had direct sight of the action and therefore can give evidence on that directly
any human input - if not supported by evidence - renders it hearsay e.g digital photofit
Are calls made by a person to another whom they believe to already know the facts - eg requesting drugs - hearsay where intercepted?
no, as no intention to cause recipient to believe/act a certain way
What is the test in Twist for determining whether a statement is hearsay?
1 - ascertain matter which is to be proven
2 - assuming matter sought to be proven is relevant - was a statement of the matter made? if yes = hearsay
3 - if no statement of matter made - was one of the purposes to cause recipient to believe/act as if it were true? if yes = hearsay if no=not hearsay
where might statements not be directed at another and therefore not hearsay?
private diary or notes - careful where considering whether there was an intended audience
is it possible for evidence to be admissible for one but not another charge on indictment for example?
yes - admissible to prove something other than the matter stated - can be allowable for only one charge - would be a factor to consider where considering whether to try charges separately
Are statements as to an individuals’ state of mind hearsay?
yes
however statement from which state of mind could be inferred are not - eg description of observed behaviour
do hearsay rules apply to statements relevant to why a person took a certain course of action
no - e.g giving evidence of threats made by terrorist - not to prove threats true but to show why D behaved in a way they did having feared death
is evidence given on solicitors advice hearsay?
no - where adduced to show why D behaved in a certain way - yes if trying to prove truth of matter
what may a statement be used to prove without infringing hearsay?
knowledge of the maker - e.g denies brothel , but sought to place advert for it weeks before
are lies and untrue statements admissible?
demonstrably false statement - lie cannot be hearsay of a matter it is not intended to assert - eg false alibi evidently false - what matters is that it was said
what additional 3 safeguards are in place for considering admissibility of hearsay ?
s124 - testing of credibility where maker does not attend s125 - power to stop case where evidence unconvincing s126 - discretion to exclude hearsay (plus s78)
what 6 stage steps gives an approach to testing admissibility of statement?
- is there a stat gateway? (ss116-118)
- What material is there which help to test or assess the hearsay? (s124)
- is there a specific interests of justice test ?
- if no justification or gateway - should evidence nevertheless be considered in interests of justice? (s114(1)(d)
- even if prima facie admissible, ought it be ruled inadmissible? (s78 PACE or s126 CJA)
- if evidence is admitted, should the case be stopped under s125 ?
when should direction to counsel/jury be given on hearsay
deal with reasoning for admission/exclusion with counsel so they can tailor speeches/make submissions
give direction to jury prior to giving evidence and again at summing up
What hearsay excpetion is covered in s116
witness is unavailable
how might a witness be deemed ‘unavailable’ in s116
- dead
- unfit to be a witness
- outside of the country and not reasonably practicable to secre attendance
- cannot be found , all reasonable steps taken
- through fear person does not give evidence - no requirement for fear to be of D - but FEAR must be cause - leave only if in interest of justice
what are the constraints on s116
apply to be first hand hearsay only, person must be identified and contents must be clearly their direct recollection and not hearsay in itself
cannot be relied upon where something done to prevent that person from attending (even if just one of many causes) eg threat from D caused W to flee country
what may a court do where a witness has died
proceed straight to considering fairness
what must a court do where a witness is said to be unfit
further investigate to ensure condition met - unable to understand/communicate evidence
what may the appropriate consequence of ‘sudden unfitness’ be - for example due to hospitalisation
may refuse adjournment but must consider application under s116 at all
what is conisdered ‘reasonable’ steps to secure attendance/find witness
depends on circs, prosecution must be able to present specific and compelling evidence of every reasonable step taken, reasons will be taken into account - keep in touch, prevent loosing them, explain duty
evidence of absence from country must be secured - that is not just hearsay itself
what might be a practical solution to not being able to secure in person attendance
video link
Why is it precarious for an accused to object to fairness of admitting hearsay under intimidation exception
if they have created such intimidation they should not benefit from it
should a witness be assured their statement could be read if afraid?
no - deffo not - all possible routes to get them to court should be explored incs content of statement , risk to fairness and special measures
what class of statement is given exception under s117
business documents - including medical records, police statements
what extra provision under s117 applies to documents prepared for criminal proceedings
one of 5 conditions in s116 should be present OR person who supplied the document cannot reasonably be expected to have any recollection of matters contained in it
how can a document then be presented in court?
without elaboration or improvement
what factors must a court have regard to when considering interests of justice under s114(1)(d)
- probative value of statement
-other evidence of the matter mentioned
-importance of statement to the case as a whole
-circumstances in which the statement was made - how reliable the statement maker appears to be
- how reliable evidence of the making of the statement is
- whether oral evidence could be given
- difficulty involved in challenging the statement
- extent to which any difficulty would prejudice a party
how should consideration of the s114(1)(d) factors be conducted
no need for all - go deeper into highlighted factors and any other prevalenet consideration
what caution is applied to ss114(1)(d)
‘interests of justice’ - is to be applied as a safety valve only and not as a work around
what common law exception does s118 preserve
public documents and information - to prove facts of matter concerned
Res Gestae - overpowering emotion cannot result in distortion or concoction, accompanying act or physical sensation or state of mind
confessions/admissions
furtherance of common enterprise
expert to draw on body of expertise
what must a judge make clear to jury when directing on res gestae
spontaneous statement has been admitted
for jury to decide what was said and must be sure witness cannot have been mistaken
must be satisfied declarant did not concoct out of malice
attention to special features
what is admissible under furtherance of common enterprise
statement made by a party to a common enterprise against another party as evidence of matter stated
chiefly conspiracy cases but not limited
when is a hearsay statement admissible to prove fact that an earlier hearsay statement was made ?
- admissibility under statute (s117,119, 120) - NOT 116/common law
- agreement of all parties
- interests of justice
wider def of hearsay - statement relied on as evidence of matter in it - not made in oral evidence
what is opposing party entitled to put in ebvidence to counterbalance absence of XX for hearsay statements under s124?
anything which would have been admisisble if witness had been present AND evidence for things which witnesses word would have been final on
inconsistency
credibility
can s78 PACE be applied (exclusion in interest of justice)
yes - positive duty on court to implement if appears issue determined by unconvinving hearsay - rule in advance or during
what should judge do where hearsay consitutes principle evidence for issue eg identification
consider context , ensure counterbalancing measures have been explored, give appropriate directions on any inconsistency or danger of relying entirely upon it
what control measure does s126 put in place for hearsay?
court has power to refuse to admit if made outside of oral evidence, there is a case for excluding it and it would result in an undue waste of time - e.g unconvincing/superfluous hearsay
what control measure is contained in s125
power to stop trial at any point after close of prosecution case where based wholly or partly on hearsay so unconvincing that conviction would be unsafe - even for lesser offence if same applieswh
which hearsay applications require notice
s114(1)(d) - interests of justice
s116 - witness unavailable
s117(1)(c) - statements prepared for crim poceedings
s121 - multiple hearsay
what are notice periods in Mags and CC?
Prosecutor
Mags - 20 business days
CC - 10 business days
Defence
ASAP
serve on all parties - can be waived or altered
