Hearsay Evidence Flashcards
What’s the test for admissibility of hearsay? CJA 2003, s 114
In criminal proceedings a statement not made in oral evidence in the proceedings [OUT OF COURT STATEMENTS] is admissible as evidence of any matter stated if, but only if:
(a) statutory exceptions apply
(b) common law exceptions preserved in s 118 apply
(c) all parties to proceedings agree
(d) in interests of justice to admit it
What is hearsay evidence?
Second-hand account of relevant matters which seeks to establish the truth of the matter it states
Examples:
- Related by a person (A) to whom absent W (B) has spoken
- Contained in written statement of absent W
- Given in form of a doc / record created by absent W
What’s the scope of rule against hearsay?
(1) Applicable to both P & D
(2) Both docs & oral statements
(3) Covers all statements (not only those made in anticipation of trial, so might include e.g. business records)
(4) Covers both:
(a) statements of non-Ws, and
(b) past statements made by a W who is called to give oral evidence & therefore could be XX’ed on what he has said previously
*Reliability of evidence does not per se prevent it from being ‘hearsay’
What’s the definition of ‘ statement’ under CJA 2003, s 115?
Any representation of fact / opinion made by a person by whatever means; including a representation made in a:
a) sketch
b) photofit / other pictorial form
- (So clearly does not include pieces of real evidence)
Regarding previous statements of Ws, can W’s out-of-court statement be admitted as hearsay?
No, if tendered as evidence of consistency (rather than of matter stated)
- E.g. in one of the exceptions to the rule against self-serving statements
Regarding previous statements of Ws, can W’s previous inconsistent statement be admitted as hearsay?
No, if tendered merely to show inconsistency
Can mechanically produced evidence be considered statements under CJA 2003, s 115 and admissible as hearsay statements?
(1) Purely mechanical generation of image/video/recording (e.g. CCTV) = not hearsay (not ‘made by a person’) & can be shown to jury (cannot be adduced as hearsay)
- Similarly, a W who has seen image/video/recording can give evidence of what he saw
(2) However, image generated by human agency (e.g. sketch, photofit, pictorial form) is a ‘statement’ for the purposes of the hearsay rule (can be adduced as hearsay)
What’s the definition of ‘matter stated’ under CJA 2003, s 115?
If (one of) the purpose(s) of the person making the statement was:
(a) to cause another person to believe the matter stated,
or
(b) to cause another person to act / a machine to operate on the basis that the matter is as stated
What are examples of situations involving the ‘reliance upon statement as evidence of matter stated’ under CJA 2003, s 115?
(1) Second-hand info
- E.g. Eye-witness A sees car registration plate, & tells number to B, who has not = hearsay for B to tell number to court for purpose of proving the truth of A’s statement (if B made a note & A is giving evidence himself, A may refresh his memory from B’s note)
(2) Labelling / stamping of items
- E.g. goods imported in a bag marked ‘Produce of Morocco’, marks are hearsay evidence of country of origin
- E.g. information stamped on to a document (e.g. of a date)
(3) Conversation through an interpreter
- E.g. party to a conversation conducted through interpreter intends to prove what other party said by relating what interpreter told him
(4) PO testifying
E.g. saying someone a ‘known drug user’ w/ basis of knowledge supplied either by others or by person in Q
Are communications in the context of a common understanding hearsay?
No
1) If person making statement believes recipient already knows of the matter in Q
- E.g. text asking for return of a gun
- E.g. text from D to C apologising for raping her
- E.g. telephone calls made to drug dealer asking to buy drugs
= not speaking with either (e.g.) of the above hearsay purposes
2) If statement not directed at another person = not ‘intended to be believed’
E.g. statement contained in personal diary, intended for author’s sole use
Cf where diary is ‘more in the nature of a record’ (e.g. also had 3P entries)
What’s the common law test for whether communications are hearsay?
(1) Is the matter sought to be proved (by admission of the hearsay) relevant?
- I.e. what is the purpose of the party in adducing the communication?
(2) If yes, is there a statement of that matter in the communication?
- Can it be considered as statement of the ‘matter stated’ per CJA 2003, s 115
(3) If yes, was one of the purposes (need not be sole/dominant) to cause the recipient or anyone else to
(a) believe the matter, or
(b) act on basis that it is as stated?
Evidence of ‘matter stated’ may be relied on for more than one purpose. What are these?
May be:
(1) admissible, original evidence for one purpose (i.e. not to establish truth of matter stated), and
and
(2) inadmissible hearsay for another
- If evidence is admissible re: one count in an indictment but not another = inadmissibility is relevant to whether the counts should be tried together
- Such cases require a very careful judicial direction as to the use to which the evidence may properly be put
What are the considerations regarding statements intended to be believed or acted upon, and how does this relate to the concept of hearsay?
1) Asserting a ‘state of mind’ to cause another to believe it = hearsay
- May be admissible under res gestae exception in s 118
(2) However, statement from which a state of mind may be inferred = not hearsay
- E.g. X accused of murdering Y in revenge for killing Z. X kept letter from 3P lamenting that nobody had avenged Z’s death for several months. Non-hearsay evidence for X’s state of mind
How does the distinction between hearsay and non-hearsay purposes apply to statements giving rise to inference of relevant state of mind or reason for acting?
Not Hearsay:
1) statement from which a state of mind may be inferred
- E.g. X accused of murdering Y in revenge for killing Z. X kept letter from 3P lamenting that nobody had avenged Z’s death for several months. Non-hearsay evidence for X’s state of mind
(2) Statement provides reason why person took relevant action
- Not to demonstrate proof of thing stated, but to demonstrate impact on X
E.g. evidence of threats to X not to establish truth of threats but to show that if X believed them, he may have feared death if he didn’t obey
(3) Statement used to prove knowledge of maker
E.g. X denied knowing place was a brothel; an ad he placed previously describing it as a ‘brothel’ admissible to show that he did know
(4) Mere making of statement has legal significance, aside from any Q of its truth
- E.g. Evidence from undercover POs in brothel that women had offered them sex went to issue of whether offers had been made — admitted as making out legal definition of ‘brothel’, not truth of matters stated per se
- E.g. diary entries made by an individual who did not give evidence admissible to represent the ‘directing mind & will of a company’
(5) Lies & other untrue statements
- Lie cannot be hearsay evidence of a matter it is not intended to assert
Is hearsay:
- statements made to assert a state of mind or to prove a matter intended to be believed or acted upon are classified as hearsay.
CJA 2003, s 114 - what does this section relate to?
Test for admissibility → CJA 2003, s 114
In criminal proceedings a statement not made in oral evidence in the proceedings [OUT OF COURT STATEMENTS] is admissible as evidence of any matter stated if, but only if:
(a) statutory exceptions apply
(b) common law exceptions preserved in s 118 apply
(c) all parties to proceedings agree
(d) in interests of justice to admit it
CJA 2003, s 115 - what does this section relate to?
Definition of ‘statement’ and ‘matter stated’
Statement = any representation of fact / opinion made by a person by whatever means; including a representation made in a sketch, photofit / other pictorial form
Including:
1) Previous statements of Ws
2) Mechanical produced evidence
‘matter stated’ = If (one of) the purpose(s) of the person making the statement was:
(a) to cause another person to believe the matter stated, or
(b) to cause another person to act / a machine to operate on the basis that the matter is as stated
a) ‘reliance upon statement as evidence of matter stated’ includes:
(1) Second-hand info
(2) Labelling / stamping of items
(3) Conversation through an interpreter
(4) PO testifying
2) includes common law test for wether commns are hearsay:
a) Relevance: Determine if the matter sought to be proved by admitting the hearsay is relevant to the case.
b) Statement of the Matter: Check if there is a statement of that matter within the communication.
c) Purpose of the Statement: Ascertain whether one of the purposes of the statement was to:
- (1) believe the matter, or
- (2) act on basis that it is as stated?
What are the common
law exceptions that were preserved by s118 of the CJA? There are 8 exceptions
(1) Public documents & information
Includes:
(a) published works dealing w/ matters of a public nature (e.g. histories, scientific works, dictionaries, maps): evidence of facts of public nature stated
(b) public documents (e.g. public registers): evidence of facts stated
(c) records (e.g. of courts, treaties, Crown grants, pardons): evidence of facts stated
(d) evidence re: X’s age & date/place of birth: may be given by a person w/o personal knowledge of the matter
(2) Reputation as to character (rare)
- Use of reputation to prove character
(3) Reputation or family tradition (rare)
- Use of reputation/family tradition to prove or disprove pedigree, the existence of a marriage, any public or general right, or the existence of any person or thing
(4) Res gestae
(5) Confessions
=now governed by PACE s 76
- Most important vestigial common law rule: implied acceptance by A of a statement made in his presence — may operate even where A silent in face of accusation
(6) Admissions by agents
Includes:
(a) an admission made by an agent of D = admissible against D as evidence of any matter stated, or
(b) a statement made by a person to whom D refers a person for info = admissible against D as evidence of any matter stated
(7) Statements made in furtherance of a common enterprise
= admissible against another party to the enterprise as evidence of any matter stated
Examples:
- Particularly associated w/ charges of conspiracy
- Evidence of suicide pact; evidence that V bought poison for him & D
- Joint enterprise
(8) Expert evidence
= expert Ws may draw upon body of expertise relevant to his field
- In some cases, dividing line between:
(1) evidence of opinion, ‘expounding of general study’ (which may be informed by hearsay in field, i.e. a body of learning), and
(2) reliance on existence/non-existence of some fact, basic to the Q on which expert asked to give opinion (must be proven according to normal rules of evidence)
What’s the test of admissibility under the first limb of (statement made by person so emotionally overpowered by an event that the possibility of concoction/distortion can be disregarded) Res Gestae?
(1) Primary Q: can the possibility of concoction/distortion be disregarded?
(2) Need 1st to consider the circumstances in which the statement was made:
- Event must be so unusual, startling / dramatic as to dominate V’s thoughts, so that his statement was an instinctive reaction to it = no real opportunity for reasoned reflection
- But statement must be made in conditions of approximate, but not exact contemporaneity
(3) Whether sufficiently ‘spontaneous’ → so closely associated with the event exciting the statement that declarant’s mind was still dominated by it when statement made
- Fact that the statement was made in answer to a Q is but one factor to consider under this heading
(4) Apart from timing, case may have special features relating to possibility of concoction/distortion (e.g. motive of malice against D)
- Judge must be satisfied that circs of offence are such that = nonetheless no possibility of concoction/distortion
(5) Re: possibility of error of facts narrated in statement
- If simply rely on ordinary fallibility of human recollection → goes to weight (jury) & not admissibility
- But if special features, e.g. declarant very drunk, or had defective eyesight → judge must consider whether can exclude possibility of error
NB: 1 admissible res gestae statement can derive from 2 eye-W accounts (one who made emergency call having witnessed a stabbing, who read a car-registration no. written by anor: both reacting spontaneously to same event)
In cases of domestic abuse, are statements made in phone calls to emergency services & respondent POs who arrive admissible as part of Res Gestae?
Usually yes
- Fact that C was available to testify (but not called) does not mean evidence cannot be adduced as hearsay: P entitled to have appropriate regard for the well-being of a W in the domestic violence context
- However per s 116(2)(3), where C fails to testify through fear, res gestae exception should not provide way around
- Criteria applicable to the s 114(1)(d) ‘interests of justice’ exception likely to be helpful in exercising the discretion in res gestae cases (so preventing results ‘at odds’ w/ that provision too)
Where a res gestae statement admitted, judge must make it clear that? 3 directions
(1) it is for jury to decide what was said & to be sure that Ws were not mistaken in what they believed was said to them
(2) jury must be satisfied that the declarant did not concoct/distort to his advantage / A’s disadvantage the statement relied on, & that he was not activated by any malice or ill-will
(3) draw attention to any special features re: possibility of mistake
