Topic 10- Hearsay Flashcards
What is the definition of hearsay?
A statement not made in oral evidence that can be admissible
“Second hand” oral evidence
What is the definition of a statement?
Any representation of fact or opinion made by a person by whatever means
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
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
Which act governs hearsay rules?
Criminal Justice Act 2003 (CJA)
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
Are hearsay statements by nature admissible?
No, they must meet the exceptions
Is a sketch or photofit created by a person deemed a statement?
Yes, therefore it fits the hearsay rule
What is given in CJA 2003 s115?
Definition of a matter stated
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
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
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
If a statement is for the maker’s sole use, is this hearsay?
No
Eg, diaries are not hearsay
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
Where a state of mind is asserted by a speaker, is this hearsay?
Yes, as long as it causes another to believe it
Can lies and untrue statements be hearsay?
Yes
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
What is the provision found in CJA s116?
If there is an unavailable witness, this makes the hearsay automatically admissible
What is the unavailable witness condition for hearsay evidence?
If there is an unavailable witness, this makes the hearsay automatically admissible
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
What does the unavailable witness exception in s116 only apply to?
First hand hearsay
It does not apply to second hand hearsay
Can applications under the unavailable witness (s116) exception apply to oral hearsay statements?
Yes, as well as documented statements
Where a person is responsible for the absence of a witness, can they rely on their hearsay statement?
No
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
