Topic 10- Hearsay Flashcards by William Rowlands

What is the definition of hearsay?

A statement not made in oral evidence that can be admissible

“Second hand” oral evidence

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What is the definition of a statement?

Any representation of fact or opinion made by a person by whatever means

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If a witness makes an out-of-court statement tendered as evidence of consistency, will it be hearsay?

No, this is the rule against narrative

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If a witness makes an out-of-court statement tendered as evidence of inconsistency, will it be hearsay?

It is not hearsay when tendered to merely show inconsistency

S119 permits these statements

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Which act governs hearsay rules?

Criminal Justice Act 2003 (CJA)

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Can evidence produced by mechanical means (eg, photos, CCTV) be hearsay?

No, as this does not come under the definition of statement

Must be made BY A PERSON

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Are hearsay statements by nature admissible?

No, they must meet the exceptions

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Is a sketch or photofit created by a person deemed a statement?

Yes, therefore it fits the hearsay rule

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What is given in CJA 2003 s115?

Definition of a matter stated

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What is a “matter stated”?

A matter stated is where the purpose of the person making the statement was to:

Cause another person to believe the matter
or
Cause another person to act on the basis that the matter is stated

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What is the three-stage test given in Twist, 2011?

Ascertain the matter sought to be proved

Whether there is a statement of that matter in the communication

Was it one of the purposes that the recipient should believe that matter?
- if yes –> hearsay

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How does hearsay relate to “matter stated”?

Evidence is hearsay where it is relied upon as evidence of any matter stated- where it is sought to establish the truth of the matter

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If a statement is for the maker’s sole use, is this hearsay?

Eg, diaries are not hearsay

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Where a statement is tendered for some reason other than to establish the matter stated, how should that statement be approached?

It requires careful judicial direction as to the use to which the evidence may properly be put

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Where a state of mind is asserted by a speaker, is this hearsay?

Yes, as long as it causes another to believe it

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Can lies and untrue statements be hearsay?

Yes

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What are the four exceptions to hearsay?

Any provision of the White Book

Any rule of law preserved by CJA s118

All parties agree to it being admissible

The court is satisfied in the interests of justice for it to be admissible

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What is the provision found in CJA s116?

If there is an unavailable witness, this makes the hearsay automatically admissible

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What is the unavailable witness condition for hearsay evidence?

If there is an unavailable witness, this makes the hearsay automatically admissible

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What are the five conditions for unavailable witness hearsay?

Person is dead

Person is unfit to be a witness

Person is outside the UK

Person cannot be found, even after reasonable steps to find him

Person is in fear to come to court

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What does the unavailable witness exception in s116 only apply to?

First hand hearsay

It does not apply to second hand hearsay

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Can applications under the unavailable witness (s116) exception apply to oral hearsay statements?

Yes, as well as documented statements

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Where a person is responsible for the absence of a witness, can they rely on their hearsay statement?

After determining whether a hearsay statement is admissible, what is the next consideration for the court?

Whether it is fair on the trial for the statement to be adduced

Where a witness has died, what will the court do to adduce their statements?

Push it through the s116 (unavailable witness) gateway to make it admissible

If a witness if said to be unfit, what must be done to adduce their statements through s116?

The court must investigate whether the condition is satisfied Eg, determining whether there is point in them being brought to court

Where a person cannot be found for trial, what must have been done to adduce their statements under s116?

Take reasonable steps to secure the attendance of the person

Where a witness states they will not come to court due to fear, what must be done before the statements can be adduced under s116?

A causal link between the fear and the refusal to give evidence must be proved

If a witness' failure to give evidence is due to them being intimidated, and the accused contests the admissibility of their hearsay statements, what are the consequences of this?

The accused will be in a very weak position to claim any infringement of the right to a fair trial

What is contained in s117 CJA 2003?

This details the admissibility of business documents

What are the requirements for the admissibility of business documents?

The documents were created by a person in the business The person had personal knowledge of the matters dealt with Each person received the information in the court of business The documents were prepared for criminal proceedings

After satisfying the requirements for the admissibility of hearsay business documents, when will they be deemed admissible?

If the relevant person cannot be reasonably expected to have any recollection of the matters dealt with in the statement

What is contained in s114 CJA 2003?

A hearsay statement is admissible if the court is satisfied that it is in the interests of justice for it to be admissible

What are the factors for determining if a hearsay statement is admissible in the interests of justice?

How much probative value the statement has What other evidence has been given on the matter How important the matter is The circumstances in which it was made The reliability of the maker

What is the rule of res gestae?

A hearsay statement is admissible if made by a person emotionally overpowered by an event that the possibility of concoction can be disregarded

What are res gestae hearsay statements?

Statements made by a person in a very emotional setting

What is the primary question the judge must ask himself when determining whether a res getstae statement is admissible?

Can the possibility of concoction or distortion be disregarded?

What is contained in CJA s118(4)?

Res gestae hearsay statements

When a res gestae statement has been admitted, what must the judge direct the jury?

That it is for them to decide what was said and to be sure the witness was not mistaken Also that the declarant did not distort or concoct the statement

Are confessions admissible under the hearsay rules?

Yes

What is a common enterprise statement?

A statement made by a party to a common enterprise for conspiracy purposes

What is multiple hearsay?

For example: A told me that B told him that C shot D

Is multiple hearsay admissible?

No, but there are exceptions

What are the exceptions to multiple hearsay admissibility?

Where it is a business document OR All the parties agree OR Where it is in the interests of justice to allow it

How may hearsay evidence be excluded?

If it poses a threat to the interests of justice, PACE 1984 s78 can be used

Where there is hearsay evidence involving identification or recognition, how do the courts react?

The courts are usually reluctant to receive this type of evidence, especially where it is a principal element of a case

What is the exclusionary power for hearsay found in CJA s126?

Excludes hearsay evidence if it would result in undue waste of time

Can a trial be stopped if there is unsafe hearsay evidence?

Yes, under CJA s125, if the evidence is so unconvincing that it would make the conviction unsafe, the trial may be stopped

Are notes or reports made by the police a type of business document within the meaning of s117?

Yes, so they can be adduced as hearsay

How can reports or notes made by the police be adduced as hearsay?

Through the s117 gateway They are a type of business document

What are the guideline surrounding the use of s114(1)(d) interests of justice?

Should be treated with caution and should not be used if there are other possible options available Eg, if there is an unavailable witness, s116 should always be used instead (unless the court should have known about the absence before- eg, if they booked a holiday)

What does s116 gateway (unavailable witness) only apply to?

First hand hearsay Cannot be second hand

How is a 999 call usually admissible hearsay?

Admissible hearsay under res gestae

Are bank records hearsay?

Yes, they will be documentary hearsay under s117

Is a phone call recorded on a secret listening device a type of hearsay?

No, it is original evidence Therefore, it can be admitted normally

When adducing a police note of a witness through s117, does the note need to be verified by the witness?

When is notice required for admitting hearsay evidence through the s117 gateway?

Only where the documents were made for criminal proceedings If they are not made for criminal proceedings or an investigation, no notice is required