Hearsay Evidence Flashcards
What is hearsay?
Hearsay is a statement made out of court by whatever means (oral, written, pictorial, sketch) made with the purpose of causing another person to believe it or act on the belief that it is true (including machines) AND the statement is now being adduced in court to assert the truth of a fact.
What does not count as hearsay?
- CCTV (not made by a person)
- Private diary (not intended to make someone else believe it)
- Questions
- Where statement used by prosecution to demonstrate its effect rather than assert its truth
What is the general rule for admissibility of hearsay evidence?
Hearsay evidence is inadmissible (due to the risk of unsafe conviction) unless one of the statutory, common law or court exceptions applies.
What are the statutory exceptions to the general rule on hearsay?
- Witness unavailable
- Business documents
- Court exercises its discretion to admit the evidence because it is in the interests of justice
- Previous statements
What are the common law exceptions to the rule on hearsay?
- Body of expertise
- Confessions
- Res gestae
- Public information
- Reputation
- Common enterprise
On what basis is witness unavailability an exception to hearsay?
Court must be satisfied that the witness has been sufficiently identified AND:
1. Witness dead
2. Witness unfit to appear
3. Witness not in the UK and it is not reasonably practicable to secure their attendance
4. Witness cannot be found and all reasonable steps to trace them have been exhausted
5. Witness does not attend because of fear.
‘Unfit”
Widely construed, need not be physical injury but could be trauma or sexual assault.
Fear
May be fear of financial loss, death, injury. Widely construed. No need for the fear to be caused by D and the court will consider the interests of justice (content of statement, risk of unfairness and all other circumstances).
On what basis are business documents an exception to hearsay?
(i.e medical records and statements from police officers on duty). Only admissible if:
- The individual (i.e Doctor, policeman) received the information in the course of their employment, trade or profession or appointment to paid or unpaid office and so did all of the people the information passed through;
- The individual can reasonably be supposed to have personal knowledge of the information.
In relation to documents prepared in contemplation of pending criminal proceedings (i.e witness statements, extracts from police notebooks), these are only admissible if they fall under the witness unavailable ground or the person cannot be expected to recollect the contents of the statement given the amount of time that has passed and other factors.
What is the court’s power in relation to the business documents ground?
The court may still exclude the evidence even if it falls within the exception if it is so unconvincing that to admit it would risk an unsafe conviction to admit it.
When can the court grant admissible hearsay in the interests of justice?
The court may exercise its discretion to admit hearsay where it is in the IOJ having regard to:
* probative value of the evidence;
* importance of the evidence in the context of the case;
* reliability of the evidence and maker;
NOT intended to circumvent the other rules or to make allowances for party who made mistakes.
How can previous statements be admitted as hearsay?
Inconsistent statements can be admitted to prove that the person is being inconsistent / lying.
Consistent statements can also be admitted.
What is res gestae?
- Where the person is so overcome with emotion in the moment that there is no risk of concocting or distorting the statement; OR
- Where statement accompanied by an act that cannot be explained without the statement; OR
- Statement related to physical or mental state
What are the other rules related to hearsay?
Multiple hearsay is not admissible except through the business docs, previous statements, IOJ rules and agreement routes.
The judge may stop the case where the hearsay is so unreliable that it might cause an unsafe conviction.
Party introducing hearsay must serve notice and evidence at court and on every other party.
