hearsay (week 7)

Question 1

what is hearsay?

Answer 1

an out of court statement by a person which is intended for the truth of its contents

Question 2

what are the rules in R v Twist and others for the rules on whether it is hearsay or not?

Answer 2

• identify what the relevant fact it is sought to prove
• ask whether there is a statement of that matter in communication. If no, then no question of hearsay arises.
• If YES, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If YES – it’s hearsay, if NO, then it is not.

Question 3

is private diary hearsay?

Answer 3

no - writer didn’t intend for anyone to read it

Question 4

is CCTV hearsay evidence?

Answer 4

piece of evidence is created entirely by a device without any human input – hearsay is only if MADE BY A PERSON

Question 5

is a question hearsay?

Answer 5

no as there is no statement in the matter

Question 6

if a party adduces evidence of what was said out of court while asserting that it is not true = is their evidence hearsay?

Answer 6

no - this is falsehood and is not hearsay evidence

Question 7

is a promise or threat hearsay evidence?

Answer 7

no they are not

Question 8

if a statement is made automatically by a machine is it hearsay evidence?

Answer 8

no but if the machine evidence is a result of human input then the hearsay rule would apply

Question 9

when are hearsay statements admissible if any of the 5 conditions are met (cases where witness is unavailable) (DIALS)?

Answer 9

Dead
Ill
Abroad
Lost
Scared

Question 10

can anonymous hearsay be admitted?

Answer 10

no - cant use cases where witness is unavailable (S116) to introduce anonymous hearsay.

Question 11

if D has intimated the witness (proven or court believes to high degree) then can D complain on fair trial that can’t cross examine witness?

Answer 11

No they cannot argue their right to fair trial has been infringed because they couldn’t cross examine witness

Question 12

what does document mean for purposes of s117 business and other documents in hearsay evidence?

Answer 12

Wording of documents is wide and covers anything in which information of any description is recorded. Covers a lot of documents which are not business documents eg, medical records, any statement written down by a police officer in the course of duty

Question 13

what is res gestae (hearsay)?

Answer 13

statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

Question 14

are previous inconsistent statements admissible?

Answer 14

if the witness admits to have made them or it is proven that they made them

Question 15

are previous consistent statements are admissible?

Answer 15

yes to rebut a suggestion or recent fabrication or as recent complaint evidence

Question 16

if a witness’ evidence goes into court without the witness being there - what safeguards are in place?

Answer 16

S124 CJA 2003 allows an opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination.

Question 17

can a case depend wholly or partly on hearsay evidence?

Answer 17

can stop a case where case depends wholly or partly on hearsay evidence as conviction could be unsafe

Question 18

what factors must the court consider when deciding whether to admit hearsay evidence into court? (9 factors)

Answer 18

1. probative value
2. what other evidence has been given
3. how important the matter or evidence mentioned in context of case as a whole
4. circumstances in which the statement was made
5. reliability of maker of statement
6. reliability of evidence on making of the statement appears to be
7. whether oral evidence of the matter can be given
8. amount of difficulty involved in challenging the statement
9. extent of which that difficulty would be likely to prejudice the party facing it

Question 19

when is notice required - when a party intends to introduce hearsay evidence? (4 situations)

Answer 19

• s.114(1)(d) (interests of justice);
• s.116 (witness unavailable);
• s.117(1)(c) (document prepared in contemplation of criminal proceedings); or
• s.121 (multiple hearsay

Question 20

when do you not need to give notice to introduce hearsay evidence?

Answer 20

common law exceptions

Question 21

what are the statute exceptions for hearsay (there are 4)?

Answer 21

o Unavailable witness (s116)
o Documents (s117)
o Previous inconsistent statements (s11
o Previous consistent statements

Question 22

what are the common law exceptions to hearsay? (there are 5)

Answer 22

public information
reputation as to character
res gestae
expert evidence
confessions (if not excluded by PACE)

Question 23

what are the time frames for serving notice on the court and every party for hearsay evidence? in the magistrates court?

Answer 23

20 business days after a not guilty plea in the magistrates’ court

Question 23

what are the time frames for serving notice on the court and every party for hearsay evidence? in the crown court?

Answer 23

10 business days after a not guilty plea in the crown court