Hearsay Evidence PDF

Preview

Summary

Hearsay EvidenceAn out-of-court statement Adduced as evidence of the truth of the matters statedIncludes Statements to the authorities for criminal justice purposes (in US law, “testimonial hearsay”) Statements made to, or overheard by, a witness (or recording device) Documents (inc. audio and video...

Description

Hearsay Evidence An out-of-court statement Adduced as evidence of the truth of the matters stated Includes Statements to the authorities for criminal justice purposes (in US law, “testimonial hearsay”) Statements made to, or overheard by, a witness (or recording device) Documents (inc. audio and video recordings) In some circumstances a pre-recorded interview can be admitted as evidence-in-chief, or cross examination, i.e. not hearsay. See examination of witnesses lecture. S.115: statements and matters stated (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been— (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated.” Combination of 4 types of rules Common law rules (formerly the only exceptions to a general rule against hearsay) preserved by Criminal Justice Act 2003, s. 118 New gateways created by CJA 2003 s. 116 Judicial discretions to admit or exclude evidence Human rights law (ECHR art. 6) “Sometimes it is necessary in the interests of justice for [hearsay evidence] to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed.” R v Riat, Doran, Wilson, Clare and Bennett [2012] EWCA Crim 1509, [2013] 1 WLR 2592, [3].

In general parties have a right to cross-examine witnesses (ECHR art 6, for defence). But hearsay evidence may be admitted where it is: necessary “potentially safely reliable” and its reliability can be tested. Ensuring reliability is especially important where the hearsay is the main (“sole or decisive”)

evidence against D (Al-Khawaja and Tahery v UK (2012) 54 EHRR 23). CJA 2003 s.116 - unavailable witnesses

Discretionary exclusion where s.116(2) (a)-(d) apply No requirement for leave, no explicit “interests of justice” test Automatic admission of prosecution hearsay (regardless of whether reliable or testable) incompatible with ECHR art. 6 PACE 1984 s. 78 applies to prosecution evidence – exclude if would make trial unfair s. 114(2) list of “interests of justice” factors applies ony to evidence admitted under s. 114(1) (d), but can be used as “aide memoire” under s. 78 (Riat 2011) Includes: probative value, importance, reliability, possibility of oral evidence, difficulty of challenging. Defence evidence can be excluded under s. 126 if of insufficient probative value Again s. 114(2) factors can be used (Atkinson 2011)

S.116(2)(a) and PACE s78 Ibrahim [2012] 2 Cr App R 32 D charged with rape. V a heroin-addicted prostitute, had previously made a false allegation of sexual assault. V died before trial CA [91]: “The more central the untested hearsay evidence, … the greater the need to ensure that the untested hearsay evidence is reliable and to ensure that there are adequate ‘counterbalancing measures’ which have been properly applied in this particular case. All three courts agreed that, ultimately, there is only a single test: did the defendant have a fair

trial or not.” [107] “…it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it can be admitted. That is also the view of the Grand Chamber of the ECtHR [in Al-Khawaja]. That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to s.125 of the CJA.” - in this case, not reliable. S.117 - business documents Note: requirement of leave in cases of multiple hearsay (s.121) doesn’t apply.

S.117 - Restrictions If statement prepared for purposes of criminal investigation, admissible only if: - s. 116(2) conditions apply, or - witness can’t be expected to remember (e.g. car registration number) i.e. must be necessary to rely on document rather than calling witness

S.118 - Common law exceptions Long list – the important ones are: Confessions (previous lecture) NB only as evidence against maker. Duplicated by PACE s 76(1) Res gestae Common enterprise In general, admissible because they are assumed to be reliable Res gestae Literally “things done” – words accompanying a relevant act or spoken shortly afterwards.

Includes evidence of intention (“must dash – my train leaves in 10 minutes”) Also statements where so “overpowered” by (usually) being the victim of crime that “possibility of concoction can be disregarded” (Andrews [1987] 1 AC 281) Recently revived in cases of domestic violence – used to admit 999 calls, bodycam recordings etc. (Barnaby v DPP [2015] 2 Cr App R 4) Easier route to admitting evidence from witness in fear? Subject to PACE s. 78 Joint enterprise Applies to charges of conspiracy but also any case where several people commit offences together. Statements by one party to the joint enterprise are admissible against the other if: Existence of joint enterprise is proved. Must be other evidence that D against whom statement used was involved Statement must be made in furtherance of the joint enterprise. NB (3) will usually exclude a confession to the police, as evidence against another D. But may include other statements that are “confessions” within PACE s 76(1). S.114 (1) (d) Admission “in the interests of justice” Recommended by Law Commission as a “safety valve” for cases where no specific rule applied 2003 Act drafted to make more prominent Since c. 2009, CA increasingly cautious about using to circumvent restrictions in other sections Confession can be admitted either as prosecution or defence evidence for/against a person other than the maker. But should not be routinely admitted (R v Y [2008] EWCA Crim 10)...