Hearsay - Exceptions II Flashcards
When is a statement hearsay?
- Made out of court
- The person that made it intended another to believe it
- Adduced as evidence of the matter stated
What are the exceptions that allow hearsay to be admissible?
1) Statutory exceptions apply
2) Any of the common law exceptions apply
3) All the parties agree
4) The court uses its statutory discretion to admit the hearsay in the interests of justice
How many common law exceptions to hearsay are there?
6
What are common law exceptions for hearsay? (6)
- Public information
- Evidence of reputation
- Res gestae
- Confessions
- Statements in furtherance of common enterprise
- Body of expertise
What is admissible public information in hearsay?
- Published works dealing with matters of public nature such as dictionaries and maps
- Public documents such as public registers
- Records such as court records and public treaties
What is evidence of reputation?
Common law allows admission of evidence to prove character, even if hearsay
What is res gestae for hearsay?
When a statement is so closely linked to an event that they are likely to be reliable and spontaneous
What are the elements of res gestae for hearsay?
Admissible if:
a) Emotionally overpowered statement
b) Act can only be considered in conjunction with that statement
c) The statement relates to a physical sensation or mental state (such as intention or emotion)
Does a res gestae statement need to be made during the offence?
No, but it must be instinctive reaction to the event – the mind of the person should still be dominated by the event
What must the jury be directed in terms of res gestae?
They must be satisfied no mistake on part of the witnesses as to what had been said –
Must be real on part of the maker of the statement
When is res gestae applicable in domestic violence cases as an example?
Complainants call to 999 can be admissible even if they don’t want to later give evidence at trial
What are statements in furtherance of common enterprise?
Statements of one party are admissible against other parties in joint enterprise
Can experts draw on other bodies of expertise even though they didn’t make that evidence?
Yes, this is an exception to hearsay. Otherwise experts won’t be able to ever use sources…
What are statutory exceptions to Hearsay?
Previous statements that a witness admits or proves to have made is admissible.
What is multiple hearsay?
A hearsay statement to prove the fact that an earlier hearsay statement has made
When is multiple hearsay admissible?
a) Either statement is admissible under s117, 119 or 120
b) All parties to the proceedings agree; or
c) Court is satisfied that the value of the evidence is so high for interests of justice
What can the opposing party put forward to challenge hearsay evidence?
Anything that could have been put to the witness to challenge credibility in cross-examination
What is the effect of unconvincing hearsay?
The judge can stop a case where case depends wholly or partly on hearsay evidence that is unconvincing – which would make D’s conviction unsafe
What is the court’s discretion to exclude?
Court can refuse to admit statement if satisfied that doing so outweighs the case for admitting it
What is the judge’s direction for the jury based on hearsay?
Jury must be reminded that hearsay was not given an oath and not tested in cross-examination
Should point to the risks
When is notice required regarding hearsay?
When a party intends to introduce hearsay evidence under:
1) S114(1)(d) – Interests of justice
2) S116 – Witness unavailable
3) S117(1)(c) – Document prepared in contemplation of criminal proceedings; or
4) S121 – Multiple hearsay
What must be included in notice of hearsay?
a) Identify hearsay evidence
b) Set out facts relied on that make evidence admissible
c) Explain how those facts will be proved if they are disputed
d) Explain why the evidence is admissible
What are timing requirements for service on notice of hearsay?
a) 20 business days after a not guilty plea in Magistrate’s court
b) 10 business days after not guilty plea in Crown Court
What must a party objecting introduction of hearsay do?
Object to the court not more than 10 business days after the last of the following:
a) Service of notice to introduce evidence
b) Service of evidence objected to, if that is evidence for which no notice is required, or
c) The D pleads not guilty
What must an application objecting introduction to hearsay outline?
a) Which facts set out in notice is disputed
b) Why the evidence is not admissible
c) Any other objection to the evidence
