Hearsay evidence Flashcards
What is hearsay evidence?
Evidence presented to the court by the party’s advocate and not by the person who originally made the evidence out of court
What is the starting point for hearsay evidence?
Generally inadmissible in criminal proceedings
What type of evidence may be admitted as hearsay?
- a statement (made by a person)
- not made in oral evidence
- tendered to prove a matter stated
What is a statement (made by a person)?
A representation of any fact or opinion made by a person by whatever means and includes a representation made in sketch, photofit or other pictorial form
What does ‘to prove a matter stated’ mean?
The person who makes the statement must make it with the intention to either:
- cause someone to believe that what is being represented in the statement is true, or
- cause someone or something to operate on the basis that what is being represented in the statement is true
When will evidence of hearsay be admitted?
Only if:
- a statutory provision applies
- a common law principle preserved by statute applies
- all parties to the proceedings agree to its admissibility
- the court is satisfied that it would be in the interests of justice to admit the evidence
What are the provisions of the CJA 2003 that may admit hearsay?
- if the witness who originally made the statement is unavailable
- if the statement is a business document
- if the statement is not in dispute
When might a witness be unavailable?
- if they are dead (consider interest of justice)
- unfit due to medical condition (render coming to court pointless)
- outside the UK (steps need to be taken to secure the witness first)
- witness cannot be found (steps need to be taken to find the witness)
- witness is in fear (can special measures mitigate instead)
When may a business document be admissible?
if the statement:
- would have been admissible as evidence of a matter stated in oral evidence
- was created or received by a person who at the time was acting in their occupation
-was supplied to someone who has personal knowledge of the matters stated
What must apply for a business document to be admitted as hearsay?
- the original witness is unavailable
- it is unreasonable to expect the witness to remember the matters referred to
What is the common law exception to the rule against hearsay?
Res gestae
What is res gestae?
It is a principle whereby if a statement is made as a result of a close and intimate connection with the event in issue, and it is made contemporaneously with that event, then it may be admitted as hearsay evidence
Mark is attacked by James and calls 999 seconds after and says to the operator ‘it was James. James hit me. I need help’ and then the phone line cut off. Mark wakes up in hospital and cannot remember who attacked him. The only evidence is the 999 call. Can the call be admitted as evidence?
It could be admitted under the res gestae principle as it was made almost instantaneously after the alleged assault and it is unlikely Mark could have concocted the statement
What must the court consider when deciding whether it is in the interests of justice to admit a statement as hearsay?
- how much probative value is in the statement
- how valuable it is to assisting the court to understand matters
- whether any other evidence has been given on the matter the hearsay relates
- how important the matter the hearsay relates
- the circumstances the statement was made
- how reliable the evidence and maker appear to be
- whether oral evidence can be given
- how difficult to challenge the statement
- the extent that difficulty would prejudice the party facing it
