A more recent version of these Hearsay notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Procedure and Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
HEARSAY THE RULE AGAINST NARRATIVE Witness usually forbidden from referring to previous consistent statements
? Roberts: Rs defence to murder charge was that it was an accident. He could not call his father to tell the court that, 2 days before shooting, R had told him that the gun had gone off by accident.
? This "rule against narrative" is now subject to three common law exceptions, made wider by CJA 2003. Common law and statutory exceptions
? Complaints by the victims of crime - s.120(7) o Previous witness statements admissible of any matter stated of which oral evidence would be admissible if s.120(5) is satisfied + the witness indicates to the best of his belief that he made the statement and that he states the truth. o 120(7) conditions
? witness claims to be person against whom offence was committed,
? the offence is one to which the proceedings relate,
? the statement consists of a complaint made by the witness about conduct, if proved, which would constitute the offence,
? M: complaint in form of long letter typed but never sent to childline.
? the complaint was not made as a result of a threat or promise and
? before the statement is adduced the witness gives oral evidence in connection with its subject matter. o Can be admitted to prove any matter in issue in the proceedings. o AA: on jury directions, Laws LJ recommended that jury be told that the previous consistent statement or complaint is evidence of the truth of what was stated, but in according it weight should bear in mind that it comes from the same person who now complains in the witness box. o Applied in Xhabri
? Rebutting suggestions of concoctions or afterthought - s.120(2) o Evidence can be adduced to show that testimony was told consistently from early on. o Oyesiku: CA held that s120(2) applied where prosecution alleged that Os testimony was late fabrication - defence should be allowed to adduce statement made just after offence. o Doesn't seem to be any requirement that the accusation is of the concoction being recent. o Statements admissible as evidence of any matter stated of which oral evidence by witness would be admissible.
? Res gestae - s.118(1), r4 o "res gestae" are words said in circumstances in which risk of fabrication is eliminated because the circumstances are such that the mind is completely dominated by the event.
o s.118(1) r4 allows consistent statements forming part of the res gestae to be admitted.
o R4: statement admissible as matter stated if?a) Made by someone so emotionally overpowered by the event that risk of concoction can be disregarded b) Accompanied by an act which can only be evaluated as evidence when considered with statement OR c) The statement relates to a physical sensation or mental state o Fowkes: as shot fired, son saw man with gun and shouted 'there's butcher' - ruled that the exclamation might be proved and son and police officer both testified regarding it. Previous statements of a party identifying or describing a person, object or place - s120(5) o S.120(4) lays down condition needed + need for witness to say to the best of his belief that he made the statement and that it is the truth. o Then need 120(5) - statement identifies or describes a person, object or place o Chinn: limited to those aspects of statement identifying person, object or place and the context needed to understand it. Supplementing deficiencies in the memory of witnesses - ss139 and 120(6) o Common law restrictive approach has been moderated -
? Turner (Simon Paul) - sexual complainant couldn't articulate properly in open court and trial judge allowed portions of her initial statement to be read in court and she could adopt them if she wished.
? So allowed where tonguetied/witness composed aide-memoire/viewing statement before giving evidence if other side informed. o s.139 - can refresh memory from document made/verified by them if
? State in oral evidence that the document records recollection of the matter at the earlier time, and
? Recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence. o s.120(3) - statement made by witness in a document used to refresh memory when giving evidence, on which he is cross examined and which is therefore received as evidence in proceedings is admissible as evidence of any matter stated.
? Pashmfouroush: so admissible to the extent that cross-exam happens. o 120(6) statement made by witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings
? Look at characteristics/circumstances of incident/time since in order to assess what the witness can reasonably be expected to remember (objective test)
? Note theres three parts here (1) statement made while matters fresh in witness' mind (2) witness does not now remember the matters related in the statement and (3) witness could not reasonably be expected to remember the matters well enough to give oral evidnce. Exclusionary power under s.126 in relation to statements made otherwise than in oral evidence if satisfied that the case for excluding the statement, considering the danger that admitting it would result in an undue waste of time, substantially outweighs the case for admitting.
Evidence-in-chief delivered by video recording - s137 CJA 2003
? Not yet in force but provides for video recording to be played as witness' evidence-in-chief if a video-recorded statement is made. Witness does not need to have been under oath at the time.
? Munday says this is a substantial inroad into the principle of orality that usually dominates thinking about the common law trial. Needs substantial investments before it could work. Statements made by the accused when first taxed with incriminating facts
? Incriminating replies when first told of incriminating facts = admissible as confession. o Or might be mixed statement
? If exonerating statement made after being told of incriminating facts: o If wholly exonerating - admissible, Storey. Evidence of attitude of accused. o But if accused tenders statement his lawyer helped to produce wont count, there is not the required spontaneity.
? CJA 2003 has not reformed this rule. Accused exculpatory statements only admissible as evidence of his reaction when first taxed, rather than evidence of the facts.
THE RULE AGAINST HEARSAY Rationale of a Rule Against Hearsay?The system puts a premium on orality, with witnesses delivering testimony in person. A should therefore not be able to give testimony on behalf of B. o Not best evidence + not delivered on oath + cannot be tested by cross exam + cannot see demeanour of witness. See Auld review notes. Juries wouldn't be able to attribute appropriate weight. Criticism of old restrictive laws - thought to deprive of relevant + probative evidence. o Auld had more radical view that the law of evidence was to "facilitate rather than obstruct the search for truth, and [to] simplify rather than complicate the trial process". He wanted admission of hearsay wherever relevant. o Auld's proposals were not favoured, the CJA 2003 used the Law Commission proposals and modified them slightly.
2003 Act continues to require same thought process:
1. Must examine the contested statement to determine whether it is capable of amounting to hearsay, in which case it is prima facie inadmissible.
2. Must identify into which exception to the hearsay rule, if any, that statement might fall, in order to justify its admissibility.
The Rule Against Hearsay Problems with rule against hearsay prior to the CJA 2003
? Applied indiscriminately to prosecution and defence evidence. Relevance was not a factor. o Turner: T could not adduce evidence that other party has confessed to offence with which T was charged. o HL in Blastland confirmed the rule
? Courts finding hearsay where none present + saying it wasn't there when it was =
? Reliability of evidence irrelevant
? Inhibiting effect on parties and the evidence they sought to adduce.
? Courts not finding hearsay problem where non including evidence seemed contrary to common sense. Implied Assertions?
"Implied assertion" - piece of circumstantial evidence that the law treated as though it was a direct statement upon whose truth a party intended to rely. Kearley: Raid on suspected drug dealers house + officers stayed at flat after taking hum into custody. While there 10 telephoned and 7 came in person asking for K and offering to buy drugs from K. o Police officers then testified to these calls.
o But defence successfully argued in HL that the evidence was inadmissible?
on grounds of being irrelevant and hearsay.
? Irrelevant because the words spoken when K was not present were just evidence of the callers' states of mind so not relevant to the issues in the case. They merely showed that the callers thought K was a drug dealer.
? Hearsay because, just as any express assertion saying K is a drug dealer does, this evidence is by implication seeking to establish that K is a dealer and was therefore inadmissible.
? Lord Oliver: "I cannot see any logical difference between evidence of a positive assertion and evidence of an assertion expressed as a question from which the positive assertion is to be inferred". Odd because implied assertions are not made w/ intention to mislead, but are still within the hearsay exclusion. Similarly applied in O'Connell where it was calls to O on way to police station for drugs charges.
Old law has shaped much of the new text.
- Morgan and Maguire: "The hearsay rule with its exceptions resembles an oldfashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists".
What constitutes hearsay evidence under the Criminal Justice Act 2003??
New definition in ss114 and 115 of the CJA 2003. S114: Sets out foundational principle that 'statements' not made in oral evidence are admissible as evidence of any 'matter stated' only when within one of the four categories of exception.s.115(2): defines 'statements' as meaning: o "A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form"s.115(3): defines 'matters stated': o Will be matter stated if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been: (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is stated
? The definition of 'matters stated' there to reverse the Kearley decision which held that implied assertions were within the hearsay rule. o Singh - acceptance that CL rule abolished and does not continue to apply to implied assertion. Telephone entries in this case were not 'matter stated' so were just admissible as relevant implied assertions.
? Need to determine maker of statement's intentions when uttering the words:
o Knight: diary of C (victim) could be testified to by her aunt. Was outside
the hearsay rule because C never intended that others would read her diary.
? Also not multiple hearsay- initial diary reading not hearsay.
? Similar in N diary of victim kept for herself, not to cause anyone else to believe anything so not excluded under hearsay rules. o Elliott: letters between prisoner and others with gang signs drawn on - not inadmissible hearsay, no rep of fact or opinion and no purpose to cause anyone to believe that they were in gang. o 'Leonard: text messages sent to L - one said 'gear' was 'well sound' and the other seemed to moan as to the quantity of drugs supplied. L was charged with drug possession w/ intent to supply.
? Held the texts, which were not in oral evidence, contained statements of fact and the purpose of adducing them was to prove the matters stated in them, and the purpose of whoever sent them was to cause the recipient to believe the matters stated within them. o Cf. Twist: T convicted of possession w/ intent to supply. Moments before arrest had met up with and picked up another man, who T contended was nothing to do with drugs. Crown wanted to adduce evidence of 24 text messages received on mobiles T was using at the time and which contained requests for supply of drugs. Judge ruled they were not hearsay because any assertion was merely implied and the purpose for which they were relied was not to prove any fact or matter stated in them.
? None of the messages on appeal were found to constitute hearsay. 'matter stated' defined by ref to the purpose of the maker to make the recipient believe or act upon something.
? Qs were (i) what was matter which it was sought to prove and (ii) did the maker of the communication have the purpose of causing the recipient to believe or act upon that matter?
? In Twist the matter sought to be proved was that T was the supplier of drugs, which was a relevant matter. But the content of the messages did not contain any statement that he was and the purposes of the persons making the statement were not to cause him or anyone else to believe that he was. 2 views on Twist / Leonard:
? Munday agrees with Leonard. He sees there being a statement (a representation of fact and opinion) and a matter stated (the senders were trying to express gratitude or unhappiness at what they were given).
? Stark on Twist disagrees w/ Leonard. You need to ask why the statement is relevant - there, they were trying to show that D was a drug dealer. You then need to determine it was a statement (it was) and that there was a matter stated (there was). But the matter stated in Leonard was what they thought of the drugs, it did not marry up to the relevance of the evidence, which was to establish that D himself was a drug dealer. o The statements in Leonard were about quality, which wasn't the point. o So Stark thinks the matter stated needs to be relevant to the proceedings. The implied underling assertion is that the drugs were supplied, which is what is relevant, therefore they are not hearsay. Ormerod on Twist:
-Will be welcomed as clarification on cases like Singh, Isichea, Leonard, K. Thinks confusion stems from complexity of the legislation. Ormerod agrees w/ Twist - tests from the user to the dealer are not hearsay when relied on merely to show that C was telling D something that D knew and that was a matter of common understanding. Hughes LJ outlined clear approach to definition of hearsay: o Identify what relevant fact is sought to prove o Ask whether there is a statement of that matter in the communication. If no, no question of hearsay arises o If yes, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, its hearsay, if no, its not. Difficulties remain o Judgment suggests that saying 'will you have crack tomorrow' would not be a statement (bc it is a question). But really, there is two statements - express request and implied statement that X knows D is dealer. This is more helpful bc once you realise Crown is just relying on the implied statement, the crucial Q becomes whether Xs purposes were to cause D or any other to believe that matter relied upon at trial.
? Treating all requests as non-hearsay would obscure the requirement to look to the maker's purposes when making the statement +
would rely too heavily on form of words. o Difficulty w/ act - hard to determine purpose when the maker of statement is absent from trial. o Implied assertions - the Q of whether it is hearsay doesn't turn on whether it is express or implied but whether the maker's purpose is to cause someone to believe his implied statement.
? E.g. Teper where bystander to fire said 'your place is burning and you going away from fire' = purpose clearly to cause crowd to believe that person driving away was D. Ormerod thinks that this would be hearsay even though it was an implied statement.
? So Ormerod thinks implied content of statement can be hearsay under the Act subject to maker's purposes. Process is to identify possible statements, identify matter stated relied on at trial, and ask whether maker's purposes were to cause someone to believe or act on that matter as relied on at trial. o Narrow view of relevance adopted in Kearley not remedied by the Act or this case - HL said that even if statement relied on to show that X thought D was drug dealer then was irrelevant bc does not make it more likely that they knew he was a dealer. This continues. Only relevant where X knows D is a dealer. o Would have been preferable to overrule Leonard as wrong - texts to dealers commenting on quality of drugs are not hearsay, clearly not one of the sender's purposes to cause L to believe that he was a dealer.
Spencer: drawing line between assertive and non-assertive statements based on the former being more prone to fabrication - this is not necessarily true! Esp in relation to personal diaries etc. Note: hearsay provisions only apply to statements made by persons (not by machines operating automatically).
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