hearsay Flashcards
(60 cards)
cross& tapper def of hearsay
an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted
teper v the queen
the rule against the admission of hearsay is fundamental. it is not the best evidence and is not delievered on oath. the truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tesested by x-examination.
commentary to smith v HM Adv
what a witness said shortly after incident is much more likely to be accurate than recollection at trial a year after. BUT this is not the general view in law of evidence
wilsonv hm adv
the common law gen rule is that hearsay evidence is inadmissible but there is considerable doubt about the scope of the rule and the range of exceptions to it.
CIVIL LAW
HEARSAY common law swept away by the civil evidence scot act
CRIM law
COMMON Law still remains a large part with statute reform under crim procedure 1995 act tidying up parts
CRIM academic discussion focusses on two things
what counts as hearsay (primary/ secondary)
the purpose for which hearsay is admitted.
CRIM primary hearsay
this terminology is confusing and much crit. prim= direct evidence that a statement was made and is admissible for that purpose (irrespective of truth) SOME WRITERS Q IS THIS HEARSAY?
CRIM secondary hearsay
is evidence of the truth of what is contained in a statement made by someone other than a witness. viewed as proper hearsay 1995 reforms relate mainly to secondary.
when can primary hearsay be admitted
evidence used for some other purpose. this purpose could be to prove the fact that a statement was made. could be for another purpose like credibility
when can secondary hearsay admitted
evidence which is used to prove a fact contained within the statement.
CRIM common law rules of hearsay
gen rule where hearsay = inadmissible. any evidence of where witness a gives evidence of what witness b told him. but this rule is subject to various exceptions
Subramaniam v public pros
where the point at issue is whether the statement was made not whether it is true.
evidence is hearsay = inadmissible where you lead evidence of statement to show with purpose= true. BUT where you lead evidence of a statement not to show that a statement is true BUT to show that it was made = ADMISSABLE
McLaren v macloed 1913
where the fact is proved from the statement was not an implied assertion of the maker of the statement this is IMPLIED ASSERTION.
Evidence allowed prostitutes had been overheard that they worked at a certain place. doesn’t matter whether statements true or not just matters that they help show where they were uttered was a brothel other common law systems may reject this as an implied assertion that there was a brothel. OGALVIE MADE THIS LESS CLEAR.
Ogalvie v Hm Adv
police witness wanted to obtain drugs thus tried to meet with ogalivie at particular local. no hearsay. evidence suggested implied assertion which should not have been excluded was there grounds for appeal?
geer v stirlingshire rd
res gestae is the whole thing that happened
o’hara v SMT
road traffic accident driver walked up to bystander and accused bystander of causing accident. admitted as exception to hearsay rule. utterances have to be part of the event themselves
ratten v queen
test shouldn’t be uncertain. one whether part of the event itself. test should be whether the statement was an instinctive reaction rather than a reasoned reflection.
crown wanted to lead evidence of hysterical phone call by mrs ruton whose husband accused of shooting her dead. possible phone call cut off as shot her may have been shot later.
cinci v hm adv
youth hostel heard a commotion. found complainer with cinci beside her. she stated cinci raped me. held not res gustae. as RES GESTAE ARE: SPONTANEOUS UTTERANCES AT THE TIME OF THE INCIDENT IN Q THEY ARE TREATED AS PART OF INCIDENT. EVIDENCE = TRUTH OF WHAT WAS SAID.
O’shea v HM adv
accused of stabbing 2 men 1 fatally. survivor testify with corob came in form of witness. witness saw wife shout about window then get wiped inside by o’ shea. court held RES GESTAE. evidence enough to corb statements part of the case itself does it follow cinci?
Anderson v mcfarlane
week had gone by before the serving girl had been able to tell anyone about her sexual assault.
statement still regarded as a derecenti after a week.
de recenti
reports or statements made shortly after an incident. admissible only to show consistency of witness’s story credibility usually sexual assault.
ahmed v HM Adv
complainer not testify to modify of the statement. to evidence being received that she denies making the statements. if she denies the JURY is entitled to know this.
prior inconsistent statements
if a witness gives evidence in court but has said something different earlier, evidence of that earlier statement can be lead to case light on the witness cred s.1995 263(4) examination of witness
