Hearsay Evidence Flashcards
What is hearsay evidence?
An out of court statement offered in court as evidence the truth of matters stated
Includes statements to authorities, statements made to or overheard by a witness and documents such as audio and video recordings
S.114 Criminal Justice Act 2003
Statement not made in oral evidence is not admissible as evidence unless it is a statutory hearsay exception, a common law hearsay exception, it is admissible by agreement between the parties, or it is in the interests of justice to be admissible
S.115 Criminal Justice Act 2003
What is a statement?
Statement is any representation of fact or opinion made by a person by whatever means
S.116 Criminal Justice Act 2003
Statement can be given as hearsay if a witness is unavailable, including if the maker is dead, unfit to be a witness, outside of the UK or if the maker cannot be found but reasonable steps have been taken
To admit under s.116, witness must be identified, as anonymous evidence can only be given under Coroners and justice Act 2009 (Ford)
S.117 Criminal Justice Act 2003
A statement prepared for purposes of criminal investigation can only be admissible if s.116 conditions apply, or the witness cannot be expected to remember the details
S.118 Criminal Justice Act 2003
Common law exceptions admit evidence that is assumed to be unreliable, including confessions as evidence against the maker (s.76(1) PACE, res gestate and common enterprise
Res Gestae
‘Literally things done’
Words accompanying a relevant act or spoken shortly afterwards, including evidence of intention
Applies to statements where the speaker is overpowered by being the victim that the ‘possibility of conception can be disregarded’ (Andrews)
Subject to s.78 PACE, as there is no good reason why witnesses cannot be called and cross-examined
Res Gestae is likely to be said to be unfair (Willis v CPS)
S.119 Criminal Justice Act 2003
A previous inconsistent statement will be admissible as evidence of any matter stated of which oral evidence by him would be admissible (Joyce and Joyce)
S.120 Criminal Justice Act 2003
Previous consistent statements can only be admissible: to rebut allegation of fabrication, if cross examined on a ‘memory refreshing document’, if statement was made when memory was fresh and witness cannot now be expected to remember, or through a victim complaint
Weaknesses
Jury must be made aware of potential weaknesses in relying on hearsay:
statement not made on oath, author not tested in cross-examination, specific risks of relying on hearsay, make sure to scrutinise the evidence with care, draw attention to other evidence and any discrepancies between this and the hearsay (other witness statements, CCTV footage etc)
