Evidence - Hearsay Flashcards
(30 cards)
What is the general rule against hearsay in criminal proceedings?
A statement made out of court may not be presented as proof of its contents. This is an exclusionary rule — hearsay is generally inadmissible.
What are the two core questions to ask when dealing with potential hearsay?
- Is it hearsay?
- Does it fall under a valid exception?
What is the three-part test from R v Twist [2011] to identify hearsay?
- Identify the matter being proved.
- Is there a statement of that matter?
- Was it the maker’s purpose for another to believe/act on it as true?
→ If yes, it’s hearsay.
Give three examples of statements that are not hearsay.
- Private diary: not intended for others to believe
- CCTV footage: not made by a person
- Questions: don’t assert a matter
What is ‘original evidence’ and how does it differ from hearsay?
Evidence of out-of-court words not to prove truth, but:
- To show they were said (e.g. threats)
- To explain state of mind
- To show effect on the hearer
→ Not hearsay.
What is the relevance of Article 6 ECHR in hearsay cases?
Admitting untested hearsay may breach D’s right to a fair trial, especially if it’s sole or decisive evidence.
What are the four statutory gateways for admitting hearsay?
Hearsay is admissible if:
(a) A statutory provision makes it admissible
(b) A common law rule makes it admissible
(c) All parties agree
(d) It is in the interests of justice
When is hearsay admissible?
When the witness is unavailable due to:
- Death
- Unfitness (physical/mental)
- Abroad and cannot attend
- Cannot be found
- Fear, with leave of court
What does ‘fear’ include and what must the court be satisfied of?
‘Fear’ includes fear of harm or financial loss. The court must be satisfied to the criminal standard that fear caused non-attendance and admission is in the interests of justice.
What did Sellick [2005] establish about intimidation and hearsay?
If D intimidated the witness, D cannot complain of unfairness from not being able to cross-examine.
What does s.117 CJA 2003 allow?
Admits business and official documents created or received in the course of trade, profession, office or occupation.
What additional rules apply to documents prepared for criminal proceedings?
Admissible only if:
- s.116 conditions (admissible hearsay) apply; or
- The maker cannot recall events due to time elapsed
What does s.117(6)–(7) allow the court to do?
To exclude business document hearsay if the statement’s reliability is doubtful, considering contents, source, and circumstances.
What does s.114(1)(d) CJA 2003 provide?
Hearsay is admissible if it is in the interests of justice. The court must consider factors in s.114(2).
Name three s.114(2) factors a court must consider.
- Probative value
- Availability of other evidence
- Reliability of the maker
(Also includes difficulty in challenging and relevance to the whole case.)
Can s.114(1)(d) be used if another gateway was available but not used?
No — it cannot be used to circumvent or repair failure to meet other exceptions (e.g. s.116 conditions).
What are the six common law exceptions?
- Public information
- Reputation evidence
- Res gestae
- Confessions
- Statements in furtherance of common enterprise
- Body of expertise
What is the ‘res gestae’ exception?
A statement is admissible where:
- Made in a state of emotional overpowering
- Accompanies an act
- Describes a mental or physical state
What did R v Andrews [1987] say about res gestae?
The statement must be a spontaneous reaction to a dramatic event, made while the event dominated the speaker’s mind, excluding possibility of fabrication.
How are body-worn cameras and 999 calls used under res gestae?
Statements made immediately after domestic incidents are often admitted via res gestae — the recording captures demeanour and immediacy.
What does s.119 CJA 2003 allow regarding previous inconsistent statements?
Admits previous inconsistent statements as proof of their contents, not just as evidence of inconsistency
What does s.120 CJA 2003 allow?
Admits previous consistent statements, if:
- To rebut recent fabrication, or
- Made as a complaint in sexual offences (recent complaint)
What does s.121 CJA 2003 say about multiple hearsay?
Permitted only if:
- One statement is admissible under s.117, 119, or 120;
- All parties agree; or
- Value is so high that interests of justice require admission
What does s.124 CJA 2003 provide?
Allows opposing parties to challenge the credibility of a hearsay declarant using evidence that would have been admissible in cross-examination.
