Trial And Hearsay Flashcards
What is the rule against hearsay?
The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible, which is an example of an exclusionary rule.
What is the principle of relevance in evidence?
Subject to the exclusionary rules, all evidence that is sufficiently relevant to the facts in issue is admissible. Evidence that is irrelevant should be excluded.
What happens if an exclusionary rule applies to relevant evidence?
If an exclusionary rule applies, it does not matter how relevant the evidence may be; it will be inadmissible.
What are the two questions to address potential hearsay evidence?
- Does the evidence fall within the definition of hearsay evidence? If yes, it is prima facie inadmissible. 2. Does it fall within one of the exceptions to the general exclusionary rule?
Why is hearsay evidence problematic in court?
Hearsay evidence cannot be tested by cross-examination, creating a risk of unfairness to the defendant, especially if the hearsay evidence is critical to the prosecution’s case.
What factors determine if a fair trial is possible with hearsay evidence?
The three principal factors are: 1. Whether there is a good reason to admit the evidence pursuant to the CJA 2003; 2. Whether the evidence can be shown to be reliable; 3. The extent to which counterbalancing measures have been properly applied.
What is the three-part test from R v Twist for determining hearsay?
- Identify what relevant fact it is sought to prove. 2. Ask whether there is a statement of that matter in the communication. 3. If yes, ask whether it was intended for the recipient to believe that matter or act upon it as true.
What is an example of a situation that is not hearsay?
A private diary where the writer did not intend for anyone else to read it cannot be hearsay, as there is no intention for others to believe the statement.
When is evidence of words spoken out of court admissible as original evidence?
Evidence of words spoken out of court is admissible as original evidence when the purpose is to show that the words were spoken, rather than their truth.
What is the significance of legally significant words in relation to hearsay?
Legally significant words are not hearsay if they have significance as a matter of law, such as an offer of sexual services in exchange for money.
What are the exceptions to the hearsay exclusionary rule under the CJA 2003?
Hearsay is not admissible unless it falls into one of four exceptions: statutory exceptions, common law exceptions, agreement by all parties, or the court’s discretion in the interests of justice.
What conditions make a witness unavailable under section 116?
A witness is unavailable if they are dead, unfit due to bodily or mental condition, outside the UK with impractical attendance, cannot be found, or does not give evidence due to fear.
What does ‘fear’ mean in the context of a witness not giving evidence?
‘Fear’ is widely construed and includes fear of death, injury to another person, or financial loss.
What is the requirement for business documents to be admissible as evidence?
A statement in a business document is admissible if it was created or received in the course of a trade or business, and the person supplying the information had personal knowledge of the matters dealt with.
What are the requirements for a document to be considered admissible under subsection (2)?
The requirements are satisfied if: (a) the document was created or received in the course of a trade, business, profession, or as an office holder; (b) the relevant person had personal knowledge of the matters; (c) each intermediary received the information in a similar context.
What types of documents are covered under s.117(2)(a)?
The wording is wide enough to cover documents that are not strictly business documents, such as medical records and police statements made in the course of duty.
What additional rules apply to documents prepared for criminal proceedings?
For such documents to be admissible, either one of the five conditions in s.116 must be satisfied, or the supplier of the information cannot reasonably be expected to recall the matters dealt with.
What does s.117(6) and (7) allow regarding the exclusion of evidence?
These sections allow the court to exclude evidence if it finds the statement’s reliability is doubtful based on its contents, source, circumstances of supply, or creation.
What factors must the court consider when admitting evidence in the interests of justice?
The court must consider: (a) probative value; (b) other available evidence; (c) importance in the case; (d) circumstances of the statement; (e) reliability of the maker; (f) reliability of the making evidence; (g) availability of oral evidence; (h) difficulty in challenging the statement; (i) potential prejudice.
What is hearsay as defined by the Criminal Justice Act 2003?
A statement is hearsay if it is made out of court, intended for another to believe it, and is adduced as evidence of the matter stated.
What are some exceptions to the hearsay rule?
Hearsay may be admissible if: the witness is unavailable (s.116); it is a business document (s.117); it is in the interests of justice (s.114(1)(d)); or falls under common law exceptions (s.118).
What does s.119 CJA 2003 state about previous inconsistent statements?
A previous inconsistent statement that a witness admits to or is proven to have made is admissible as evidence of the matter stated.
What does s.120 CJA 2003 allow regarding previous consistent statements?
It allows previous consistent statements to be admissible to rebut suggestions of recent fabrication or as recent complaint evidence.
What is the rule regarding multiple hearsay under s.121 CJA 2003?
A hearsay statement is not admissible to prove an earlier hearsay statement unless certain conditions are met, including agreement by all parties or high reliability of the statements.
What does s.124 CJA 2003 allow regarding credibility of hearsay?
It allows the opposing party to introduce evidence that could challenge the credibility of the hearsay maker.
What does s.125 CJA 2003 state about unconvincing hearsay?
The judge can stop a case if it relies on unconvincing hearsay evidence that could make a conviction unsafe.
What does s.126 CJA 2003 allow the court to do?
The court can refuse to admit a statement if the case for excluding it outweighs the case for admitting it, considering the evidence’s value.
