Hearsay

Question 1

Why are we concerned about hearsay?

Answer 1

evidentially, we should wonder why we should allow it at all.
Hearsay – something that we have evidential concerns about.

Question 2

CJA 2003 – What actually is hearsay?

Answer 2

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.

Question 3

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

Question 4

S114(1)(d) ?

Answer 4

catchall provision

Question 5

S115(3)a-b – hearsay has to have an element of persuasion to it – why?

Answer 5

– 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.

Question 6

Messages between drug dealers – hearsay?

Answer 6

not hearsay because not trying to persuade anyone of anything, its just a statement.

Question 7

If the statement I not trying to persuade anyone….

Answer 7

not hearsay

Question 8

if the statement is trying to persuade someone…

Answer 8

it is hearsay

Question 9

Would the statement ordinally be admitted? – yes -
S116 – unavailable witness – provides the points where evidence can be given when the witness is not available.

Question 10

S117 – business or other documents

Answer 10

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.

Question 11

Multiple hearsay

Answer 11

Told John the RAC mechanic something and then John tells the court.

Question 12

CTTV footage or phone recording telephone convo - hearsay?

Answer 12

not hearsay - s115(b). You haven’t done or said anything to that person, the evidence has been automatically done; there’s no persuasion.

Question 13

S118 – Preservation of certain common law categories of admissibility

Question 14

S121 – Multiple hearsay…

Answer 14

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.

Question 15

s78 PACE - example…

Answer 15

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)

Question 16

S125 – stopping the case where the evidence is unconvincing

Question 17

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.

Question 18

Original evidence

Answer 18

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.

Question 19

Meaning of probative value?

Answer 19

evidence which is sufficiently useful to prove something important in a trial.

Question 20

Gateways example

Answer 20

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).

Question 21

What circumstances go under catchall of 114(d) interest of justice?

Answer 21

we have no idea

Question 22

Dealing with witnesses - memory refreshing

Answer 22

S139 CJA – memory refreshing from witness statement

Question 23

s.114(1)(a)

Answer 23

Statute says it’s okay

Question 24

s.114(1)(b)

Answer 24

All parties agree it can be used.

Question 25

s.114(1)(c)

Answer 25

Interests of justice – the judge thinks it’s fair to allow it.

Question 26

s.114(1)(d)

Answer 26

Unavailable witness – they’re dead, ill, scared, or can’t be found (see s.116).

Question 27

s.114(1)(e)

Answer 27

Past recollection recorded – like a note made right after the event (s.117).

Question 28

s.114(1)(f)

Answer 28

Expert evidence – if experts normally rely on that type of info.

Question 29

s.115/s.117

Answer 29

Business or public documents – records made as part of a job or duty.

Question 30

s.118

Answer 30

Common law preserved – includes confessions, res gestae, previous ID, etc.

Question 31

“If the law says yes or both sides agree, Or justice demands it — then hearsay is free. If the witness is gone, or too scared to show, Their words may still be allowed to flow. If it’s written down when the memory’s bright, Or kept in records done proper and right. If experts rely, or tradition stays true — Then hearsay’s allowed to walk right through!”

Question 32

Definition of Hearsay

Answer 32

Out-of-court statement offered to prove the truth of what it says (s.114(1) CJA 2003).

Question 33

Main Gateways (s.114(1))

Answer 33

1) Statutory rule 2) Agreement of parties 3) Interests of justice 4) Common law preserved

Question 34

Witness Unavailable (s.116)

Answer 34

Allowed if witness is dead, ill, abroad, can't be found or won't testify due to fear.

Question 35

Business Documents (s.117)

Answer 35

Hearsay allowed if created in course of business by someone with personal knowledge.

Question 36

Multiple Hearsay (s.121)

Answer 36

Only admissible if each level fits a hearsay exception.

Question 37

Safeguards

Answer 37

Notice must be given. Judge can exclude hearsay under s.78 PACE or if prejudicial.

Question 38

Weight vs Admissibility

Answer 38

Hearsay can be admitted but judge/jury must assess its reliability.

Question 39

What is hearsay under s.114?

Answer 39

A statement made outside court being used as evidence of the truth.

Question 40

When is hearsay admissible under s.116?

Answer 40

If the witness is unavailable due to death, fear, illness, etc.

Question 41

Can business records be hearsay?

Answer 41

Yes, under s.117, if made in course of business by someone with knowledge.

Question 42

What is 'multiple hearsay'?

Answer 42

A hearsay statement that contains another hearsay statement. Each level must be admissible.

Question 43

What section covers the general rule on hearsay?

Answer 43

s.114(1) CJA 2003

Question 44

Can hearsay be excluded even if a gateway is met?

Answer 44

Yes, under s.78 PACE or if prejudicial.

Question 45

What if a party agrees to hearsay?

Answer 45

It may be admitted under s.114(1)(c) – agreement of parties.

Question 46

All hearsay is banned in criminal trials True or false?

Answer 46

False. Hearsay is allowed through gateways in CJA 2003.

Question 47

Hearsay is always reliable True or false?

Answer 47

False. It can be challenged and carries less weight.

Question 48

Fear of testifying must always be proven by direct evidence True or false?

Answer 48

False. Fear can be inferred, but court must be satisfied.

Question 49

Multiple hearsay is never allowed True or false?

Answer 49

False. It’s allowed if each layer meets an exception (s.121).

Question 50

If business doc made by machine, it’s inadmissible True or false?

Answer 50

False. It may still be allowed if reliable and meets s.117.

Question 51

Hearsay is when a statement made outside court is used as evidence of truth. It’s allowed under certain gateways like s.116 (witness unavailable), s.117 (business records), or if justice requires it. Notice must be given, and the court can exclude unfair hearsay. Multiple hearsay is fine if each level fits a rule.