Hearsay Flashcards
(22 cards)
Why are we concerned about hearsay?
evidentially, we should wonder why we should allow it at all.
Hearsay – something that we have evidential concerns about.
CJA 2003 – What actually is hearsay?
s114 – statement not made in oral evidence. It is something that isn’t being tested in court. It’s a statement not made in oral evidence, maybe cus witness isn’t available to make it in oral evidence.
Starting rule – can’t have hearsay in criminal proceedings, why? Because someone could be going to prison over it, its serious stuff.
However, there are exceptions to allowing hearsay –
CJA 2003 s114(1)a-d
S114(1)(d) ?
catchall provision
S115(3)a-b – hearsay has to have an element of persuasion to it – why?
– you don’t persuade yourself, you persuade others. E.g. Writing in diary - Today was a great day, I think I’m going to be the best drug dealer going – can this be hearsay? no, because he’s not trying to convince anyone of anything.
Messages between drug dealers – hearsay?
not hearsay because not trying to persuade anyone of anything, its just a statement.
If the statement I not trying to persuade anyone….
not hearsay
if the statement is trying to persuade someone…
it is hearsay
Would the statement ordinally be admitted? – yes -
S116 – unavailable witness – provides the points where evidence can be given when the witness is not available.
S117 – business or other documents
Example - Calling RAC cus car broken down, they’ve written down what you’ve said, you’re speaking to them in the course of business. You’re professionally recording what someone has said.
Multiple hearsay
Told John the RAC mechanic something and then John tells the court.
CTTV footage or phone recording telephone convo - hearsay?
not hearsay - s115(b). You haven’t done or said anything to that person, the evidence has been automatically done; there’s no persuasion.
S118 – Preservation of certain common law categories of admissibility
S121 – Multiple hearsay…
Additional requirement for admissibility of multiple hearsay –
Example - Computer under s117 has printed something out, that’s broken so a different program has been used to re-print the document – this is multiple hearsay but it will be allowed.
Example – Called RAC, man has written down notes of what I’ve said – this is professional as he’s in his line of work. Uploads my words onto the system and another person summarises what I’ve said – multiple hearsay but still allowed under s117.
s78 PACE - example…
Court has looked at an application to admit hearsay evidence as exception to hearsay rule – John is in India, can’t get hold of him, going to allow it under s116 (he’s unavailable).
PACE S78 – catchall - general power to exclude evidence.
Man is in India, he can’t make the trial, his evidence is not that important, its coobatory, not the only piece of evidence – court will allow it as admissible hearsay evidence under s116 – Defence has said no that’s not fair, court would say if it was just this piece of evidence then fine, but it’s not, so I’m going to allow it. Defence still have the power to challenge and undermine the evidence – s124 (allows us to attack credibility)
S125 – stopping the case where the evidence is unconvincing
S126 – courts general discretion to exclude evidence – superflux hearsay – beyond the remit/outside of what’s required – example: evidence in theft case, statement talks about colour and style of persons hair, this is superflux, what relevance does that have? It’s not needed, wasting time.
Original evidence
Allow the evidence to be adduced as original evidence – any other evidence that isn’t hearsay. We’re submitting it to show the state of mind of the victim e.g. he’s in fear.
Meaning of probative value?
evidence which is sufficiently useful to prove something important in a trial.
Gateways example
Go to airport, you have tracks, these are where you get scanned – imagine this as your specific gateway. So if you have heart condition, you don’t go through scanned track, you just go through a pat down (heart condition would be s116 gateway).
What circumstances go under catchall of 114(d) interest of justice?
we have no idea
Dealing with witnesses - memory refreshing
S139 CJA – memory refreshing from witness statement
