14 Hearsay Evidence - Combination of lecture notes and personal notes. Contains all the information PDF

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14. Hearsay Evidence general principles of the rule against hearsay in criminal proceedings exceptions to the hearsay rule, gateways to admissibility and safeguards in the Criminal Justice Act 2003 making and opposing applications to adduce hearsay evidence under the Criminal Procedure Rules Title D...

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14. Hearsay Evidence 1. general principles of the rule against hearsay in criminal proceedings 2. exceptions to the hearsay rule, gateways to admissibility and safeguards in the Criminal Justice Act 2003 3. making and opposing applications to adduce hearsay evidence under the Criminal Procedure Rules Title General principles

Description An out of court statement.  It is ONLY hearsay if it is evidence of any matter stated (truth of that matter) Court may exclude any evidence under s. 78 (unfair) if anything (more specific provisions apply first) Judge should direct the jury if any hearsay is admitted to its general unreliability (direct before evidence heard, repeat in summing up). Examples:  X saw car plate number. X told Y. Y cannot tell the court the number as it is evidence of X’s matter stated (truth)  Stamp on a bag “product of Morocco” is hearsay  Stamp date on business document MAY be hearsay but is mostly an exception under s. 117.  Trying to tell the court what the interpreter said  Police officer testifying that accused is a known heroin user if information not from police officer. s. 114 CJA 2003: Main hearsay exceptions (a) Written law makes it admissible  s. 117: business documents  etc (b) Res gestae (c) All parties agree for it to be admissible (d) It is in the interests of justice for it to be admissible s. 115: Definition of statement and of matter stated Matter stated means**  Matter causing a person to believe a matter; or  Causing person/machine to operate/react. Overruling Kearley. MUST make sure that the statement in question MUST attempt to cause a person/thing to believe/react/operate. s. 116 where person cannot attend court, their statement may be admissible (e.g. death, fear for life, disability, abroad, lost) s. 117: business documents

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Exceptions

Three stage hearsay test*

116 absence

Description s. 118: Public documents + res gestae (statement so emotionally powered over an event/instinctual statements) s. 124: Discrediting the maker of the statement Original statement, NOT hearsay 1. Previous inconsistent statements (these are allowed even if the witness is now not sure of what they said, for instance statements made when fresher in witness mind) 2. Previous consistent statements (normally not allowed, but if allowed it is an exception) 3. Purely mechanically generated (CCTV, video recording)  Person who saw the recording may be called and treated as if eye witness. 4. Not a statement (but just requests or questions) 5. Where there is a common understanding or statement to oneself (e.g. diary) 6. Where it is hearsay, but admissible for another purpose (need proper judicial direction) 7. Statements to prove state of mind, not the truth of the statement. 8. Statements to prove issues in law (as opposed to truth) 9. Lies and untrue statements cannot be hearsay 1. Ascertain the matter sought to be proved and if it is relevant. 2. Whether there is a statement of that matter. (see s. 115) (MUST be statement, NOT a question) 3. Is one of the purposes for that person (or machine) to believe or act on that statement? If yes to ALL, then it is hearsay. Where maker of the statement cannot attend court, their statement may be admissible  Death o Complainant suicide is an exception to exclusion under 116(5)  Fear for life o A causal link between fear and refusing to give oral evidence MUST be proved o Consider video link  Disability o Trauma of sexual assault o Certified mental disorder o Great anxiety under stress giving rise to inability to recall  Abroad o MUST show reasonable steps taken to secure witness by video link or in person o MUST prepare witness in advance.  Lost o MUST show reasonable steps to find witness o MUST prepare in advance

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Description MUST  Be in the interests of justice to apply this section (fairness)  Identify clearly the maker of the statement o If unable to identify because anonymous tip or cannot trace, may proceed under 118 res gestae or interest of justice. DOES NOT apply if any of the above conditions are CAUSED by the person wanting to adduce the evidence or person acting on the makers behalf (116(5)) DOES NOT apply if multiple hearsay.

Multiple hearsay

Multiple hearsay only applies (a) For documents in the course of business (117) (consider this first); (b) If all parties agree; (c) It is so reliable and valuable that the judge can allow in the interests of justice; OR (d) Previous statement made by a witness in court DOES NOT apply to 116 which needs identification of maker.

117 Business documents

Documents created by disinterested people in the course of business.  Applies also to transcripts of earlier trial, medical records, etc Must be (a) Document created/received in the course of business; (b) The person (person/creator/receiver) who supplied the documentary information must have personal knowledge; and (c) The documentary information is passed through each person in the course of business If the document was created for the purposes of a criminal proceedings/investigation, MUST (a) Fulfil 116; OR (b) The person cannot be reasonably expected to remember because of lapse of time, etc Exception If the document is doubtful in any way.

Fairness

General rule  The more primary the evidence, the more care needs to be taken to put in as hearsay or not  This is mostly concerning s. 78 (but more specific provisions should apply first, 116, etc)

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Description Fairness considerations (s. 114) (backup to the others)  Probative value of the evidence  The existence of other evidence (to show the reliability of the evidence in question)  reliability of the witness (e.g. drug addiction, preparedness to lie)  reliability of the evidence (it is especially weak if it is identification evidence)  How the statement was made  Why oral evidence cannot be given  Difficulty in challenging the evidence and any prejudice that flows from that Other considerations  Loss of right to cross examine  Loss of right of accused to examine PW (especially if it is the main witness)

118 Public documents + res gestae + admissions/ confessions

Public documents Can be admitted without personal knowledge Res gestae Rationale  Spontaneity is a guarantee against concoction Where (a) The person is emotionally empowered by the event; (b) The statement is accompanied with an act (part and parcel of the event); OR (c) Statement relates to a mental state or physical sensation. Re gestae can be relied on by two people if the conditions are fulfilled (e.g. one write down the words of another person reading the car plate number) Note: Final words can fall under 116 now. No need to prove connection to event anymore. Directions to jury  Jury must make it clear that it is up to the jury to decide whether the statement should be believed and the witness did not concoct the story. Point out everything. Confessions/admissions What applies (a) Confessions / mixed statements (b) Admission by agent of defendant or person who the defendant refers to for information. Confessions  S. 76 PACE should be the first place to go  Co-accused may use the accused’s confession  Where not dealt with in76, then rely on s. 118.

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Description Common enterprise  Usually applies in conspiracy to commit crime.  Any act done in furtherance of a common purpose was admissible.

s. 124

Expert evidence  Where expert draws on the body of work of others  Ensure that it is drawn from expert study and not assertion of fact by expert (which must be backed by admissible evidence) Where hearsay is admitted, the opposing party may discredit the maker of the statement. May do so by adducing (a) Evidence of the maker’s credibility (b) Evidence of any matter which, if the maker is present, would give a final answer (with leave); or (c) Evidence of previous inconsistent statement.

Exclusion of hearsay

Power to stop trial if based on hearsay

Very full inquiries is needed here and simple police records will not be enough.  Court has a power to exclude evidence that is an undue waste of time if admitted*. o Prevention on lengthy satellite disputes especially if its peripheral or lacks probative value  Court has power to exclude evidence that is prejudicial more than probative.  Court has power to exclude under s. 78 The court may stop a case if (a) Prosecution’s case significantly depends wholly or partly on hearsay (b) The evidence is so unconvincing that any conviction would be unsafe. Consider  Importance of evidence  Strength and weaknesses of the evidence  The tools for the jury to test it Distinct from no case to answer (galbraith) Procedure

Step 1: Apply to admit hearsay Apply to the court as soon as reasonable practicable or within  28 days of not-guilty plea for magistrate (may apply for extension of time even after expiry)  14 days of not-guilty plea for Crown Court (may apply for extension of time even after expiry) Serve on all parties and court.  Receiving party may waive its right to notice  The court may waive the requirement of notice (even after failure to give notice) Notice MUST

Title     

Description Identify the hearsay evidence Identify the facts that the party relies on to make it admissible Explain why it is admissible Explain how the party will prove it is admissible if opposed Attach any document/statement not already served

Step 2: oppose an application Apply to the court as soon as reasonably practicable or  Within 14 days of service of notice to admit/evidence (if no notice) Application to oppose MUST  Identify facts which are relied on  Explain why it is not admissible  Include any other objections Step 3: hearing Court may decide  Without hearing  With hearing Court MUST NOT determine  Unless the respondent is present or had reasonable opportunity to respond Step 4: adjourn, vary or discharge Court may  Adjourn  Vary  Discharge Any application Note: If the application is unopposed, it is treated as agreed between both parties...