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Evidence hearsay
Evidence Ireland hearsay res gestae etc
| Question | Answer |
|---|---|
| What is hearsay evidence? | Non-testimonial statement adduced for the PURPOSE of proving that the statement is true. |
| What is a non-testimonial statement? | a statement not made under oath or on solemn affirmation at trial. |
| What is the difference between HEARSAY evidence and ORIGINAL evidence? | Hearsay evidence is adduced for the PURPOSE of proving that the (non testimonial) STATEMENT IS TRUE : ORIGINAL evidence (non testimonial) for purpose of proving STATEMENT WAS MADE. |
| What is the legal consequence of the difference between hearsay evidence and original evidence? | Hearsay evidence is inadmissible original evidence is admissible. |
| What case explains the distinction between hearsay and original evidence? | Rattan v. R. [1970] Man murder wife - original evidence showing denied phone call made was admissible- truth of phone conversation not at issue. |
| What is the rule against hearsay? | Hearsay evidence is generally inadmissable. |
| Is the pre-trial statement of a 3rd party outside court - hearsay? | Yes |
| Is the PRE-TRIAL statement of someone in court hearsay? | Yes: the pre-trial statement was unsworn. |
| Is evidence which makes an IMPLIED ASSERTION hearsay? | Yes (implied assertion -[defendant] "was hysterical". |
| What form can hearsay evidence take? | testimony of person who made statement or heard the statemant, item on which statement written, electronic recording. |
| What is the rule against narrative? | Witness may not offer (or be asked about) a PREVIOUS STATEMENT prior to trial for the PURPOSE of demonstrating CONSISTENCY with his testemantary statements. |
| What is the difference between the rule against narrative and the rule against hearsay? | hearsay rule deal with attempts to assert truth of the facts in the statement narrative rule deal with credibility of the witness. |
| What 3 constitutional reasons are there for the rule against hearsay? | 1) 38.1 Fair trial -procedural "hear and test by examination" -2) Bad character - change burden =probability not BEYOND REASONABLE DOUBT 3) Liberty bail Gardaí past deeds testimony |
| What fear of hearsay evidence was expressed in Cullen v. Clarke [1963]? | no CROSS EXAMINATION - test accuracy, reliability, veracity & credibility. |
| How does the BEST EVIDENCE RULE affect the debate on hearsay? | General duty of court to seek BEST EVIDENCE is supra constitutional - hearsay lower STANDARD of evidence than testimonial therefore testimonial & cross examined evidnce preferred. |
| What fear was expressed concerning hearsay evidence in R. v. Blastland [1986] ? | Jury unable to assess demeanour of witness or hear testing of statements therefore could give more weight than deserves. |
| What fears are there regarding witnesses memory with regard to hearsay? | Witness could forget, misinterpret what was said and cannot be tested by cross examination. |
| What fears are there about the accused or an accomplice introducing a prior unsworn statement of ther own as evidence? | May fabricate or deliberately plan previous statements to prove a FACT in their testamentary statement (hearsay) or to bolster their own credibility (narrative. |
| What ECHR article supports the rule agaisnt hearsay? | ECHR art 6 (2) presumption of innocence – imply non submission of prejudicial evidence (eg bad character – evidence of past crimes) Barbera Messegue and Jabardo v. Spain (1988) |
| What are the 2 main criticisms of the hearsay rule? | 1) too complicated/no principle 2) Good probative evidence often excluded - could exculpate innocent Sparks v R [1964] 3yr old tell mother "assailant black" -inadmissible- white man convicted. |
| What was the point in Myers v DPP [1965]? | written log books of cars = hearsay - inadmissible because no trace authors HELD: Only Parliament can change hearsay rule even if seems absurd. |
| Name a case where a statement adduced to IMPLY guilt was inadmissible as hearsay (controversial) | R v Kearley [1992]Held: no distinction between express and implied statements- visitors calling for drugs as police searched flat - policeman's account of their requests inadmissible as hearsay that could imply was a drug dealer. |
| How did the Scottish law commission criticise the inclusion of IMPLIED assertions under the hearsay rule? | No deception involved in implied assertions therefore should be allowed as may have probative value. Existence/absence of deception should be principle underlying reason for hearsay rule. |
| What are the 6 exceptions to the hearsay rule? | 1) Confessions 2) Res Gestae 3) statements by deceased people 4) public documents 5) Legislative exceptions 6) bail applications |
| Why are confessions (and admissions) excepted from the hearsay rule? | Inculpatory statementsa are unlikely to be fabricated therefore there is no need to question the evidence so closely. |
| What does Res Gestae mean? | Res Gestae: (Things done) [statement itself part of the act] |
| What 3 requirements must Res Gestae evidence meet? | 1) must be contemporaneous with the event 2) person making statement dead or unavailable 3) Relate to MATERIAL FACT (eg. Mens rea of perpetrator). |
| Does a res gestae statement have to be EXACTLY contemporaneous with the event? | No: critical factor identified in Rattan JUDGE decide if “POSSIBILITY OF CONCOCTION” – therefore may not be exactly contemporaneous. |
| What case enunciated a 2 part test as to what a JUDGE should ask to decide if a statement is admissable under the res gestae exception? | R v Andrews [1987] possibility 1) CONCOCTION 2) ERROR |
| What factors in R v Andrews [1987] should judge consider to establish chance of concoction? | 1) possibility malice 2) event so close in time - dominates mind of speaker 3) Overwhealming drama or suddeness of event |
| Where evidence of an unsworn statement is introduced to undermine the credibility of the witness what must the judge do? | Warn that evidence is not proof of subject matter of statement only credibility of witness. |
| When are statements from dead people admissible (5 situations)? | 1) Against own interests 2) in course of duty 3) declarations family pedigree 4) testators comments re: will 5) Dying declarations re: cause of death. |
| When a dead person had made a statement agaisnt their own interest what 2 criteria must be met for admissibility? | 1) Must KNOW against own interests 2) must PERSONAL KNOWLEDGE of STATED FACTS. |
| What was held in Harris v. Lambert HC [1932] re: admission of dead solicitors notes? | Admissible concerning matters of FACT not OPINION. |
| When a statement of dead person regarding family pedigree is submitted what criterion must be met? | Statement must have been made prior to any family dispute on the issue in contention. |
| What case outlines the principles to be followed when submitting a statement of a dead testator regarding the contents of a will? | Goods of Bell (1890) - can only be secondary evidence if will lost. |
| What case outlined the three requirements re: admissibility of a dying declaration from deceased regarding cause of death? | R. v. Woodcock (1789) 1) On POINT of DEATH 2) SETTLED and HOPELESS EXPECTATION of death 3) every MOTIVE of FALSEHOOD SILENCED. |
| In R. v. Jenkins (1869) why was the dying declaration of the deceased inadmissible? | said “no PRESENT hope of my recovery” - not a SETTLED and HOPELESS expectation os death. |
| Why are statements in public documents admissible as an exception to the rule agaisnt hearsay? | Public documents benefit from a presumption that there was a strict duty to inquire into the accuracy of the document when it was made - e.g. birth certificaate. |
| Are the prior statements of hostile witnesses admissible? | yes: Criminal Justice Act 2006 . |
| What was the point in Subramaniam v. Public Prosecutor [1956]? | Subramaniam v. Public Prosecutor [1956] – statement that terrorists threatened to kill defendant if he did not take possession of bullets admissible - indicated that he had grounds to fear mens rea – not prove they would have killed him |
Created by:
Solomon