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14. Hearsay Evidence
Includes:
- What is Hearsay?;
- Hearsay Test;
- Hearsay and Original/ Real Evidence
- Gateways for Admitting Hearsay Evidence;
- How to Make an Application to Admit Hearsay Evidence?;
- How to Oppose an Application.
What is Hearsay?
Hearsay genuinely refers to things said that are unsubstantiated, like rumours.
In a legal context, the definition of hearsay is:
A statement*;
Made by a person outside of court;
Whose purpose was to cause another person to
believe the matter stated, or to cause a person or
machine to act on the basis that it is true.**
Therefore, hearsay relates to attempting to establish the truth of a matter in
proceedings using unsubstantiated statements.
- **These unsubstantiated cannot be used as they could have been concocted
to throw people off the scent so to speak (eg That man is stealing the
champagne! While that person steals something themselves and sneaks out
the backdoor).
*A ‘statement’ refers to any representation of fact or opinion, made by a
person, by whatever means.
- This also includes a representation made in a sketch, photo, picture or
even expression.
Such a statement is, by default, inadmissible and applies equally to prosecution
and defence.
However, Under Section 114 Criminal Justice Act 2003, a hearsay statement may be
admissible if:
(a) Section 118 makes it admissible*;
(b) A common law provision makes it admissible;
(c) All parties agree; or
(d) The court is satisfied that it is in the interests of justice.
Hearsay Test
, The case of Twist (2011) created a three-stage test form the definition of Hearsay,
which is as follows:
Is the evidence a statement?
Was this statement made by a person?
Was it made outside of court?
If yes,
Did the maker of the statement have the intention to make
someone believe what they were saying or cause them to
act on the basis that it was true?
Ie: Could it have been said to concoct?
If yes,
Is the party trying to adduce the evidence trying to do so
for the purpose of proving the matter to which the
statement relates?
If yes, the statement is hearsay and will only be
admissible evidence if admitted through one of the
gateways.
Hearsay and Original or Real Evidence
To best illustrate what is regarded as hearsay, the fine line between hearsay and
original/ real evidence must be understood.
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