What makes a statement admissible

For all of these reasons, we think the House amendment should be rejected and the rule as submitted by the Supreme Court reinstated. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate]. As submitted by the Supreme Court and as passed by the House, subdivision d 1 c of rule made admissible the prior statement identifying a person made after perceiving him.

The committee decided to delete this provision because of the concern that a person could be convicted solely upon evidence admissible under this subdivision. While the rule refers to a coconspirator, it is this committee's understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged.

United States v. Rinaldi , F. Spencer , F. Rule supplies some basic definitions for the rules of evidence that deal with hearsay. Rule d 1 defines certain statements as not hearsay. The Senate amendments make two changes in it.

The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and if the statement is inconsistent with his testimony and was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Senate amendment drops the requirement that the prior statement be given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition.

The Conference adopts the Senate amendment with an amendment, so that the rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury. Prior inconsistent statements may, of course, be used for impeaching the credibility of a witness. When the prior inconsistent statement is one made by a defendant in a criminal case, it is covered by Rule d 2.

The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. The Senate amendment eliminated this provision. Rule d 2 has been amended in order to respond to three issues raised by Bourjaily v. Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated.

The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question.

This amendment is in accordance with existing practice. Every court of appeals that has resolved this issue requires some evidence in addition to the contents of the statement. See, e. Beckham , F. Sepulveda , 15 F. Daly , F. Clark , 18 F. Zambrana , F. Silverman , F. Gordon , F. Hernandez , F. Byrom , F. Third, the amendment extends the reasoning of Bourjaily to statements offered under subdivisions C and D of Rule d 2.

In Bourjaily , the Court rejected treating foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule a. The Advisory Committee believes it appropriate to treat analogously preliminary questions relating to the declarant's authority under subdivision C , and the agency or employment relationship and scope thereof under subdivision D.

GAP Report on Rule The second sentence of the committee note was changed accordingly. The language of Rule has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

No change in application of the exclusion is intended. Rule d 1 B , as originally adopted, provided for substantive use of certain prior consistent statements of a witness subject to cross-examination. Though the original Rule d 1 B provided for substantive use of certain prior consistent statements, the scope of that Rule was limited.

The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness's testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory.

Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness's credibility. The original Rule also led to some conflict in the cases; some courts distinguished between substantive and rehabilitative use for prior consistent statements, while others appeared to hold that prior consistent statements must be admissible under Rule d 1 B or not at all.

The amendment retains the requirement set forth in Tome v. Consideration of hearsay may arise at various stages of the proceedings.

Witnesses may become unavailable unexpectedly or a special measures application may be refused. Prosecutors should keep issues of hearsay under continual review and comply with the notice requirements wherever possible.

See Part 20 of the Criminal Procedure Rules for the correct procedure. Forms for use can be accessed on the Criminal Procedure Rules Forms page where written notice of application to adduce hearsay evidence is required. These are:. Most of the hearsay provisions apply equally to the defence and the prosecution, with the added safeguard for the defendant that any matters requiring proof must be proved to the criminal standard by the prosecution and on a balance of probabilities by the defence.

Statements in documents can be proved by producing the original document or an authenticated copy of it: Section Police Officers may have to give evidence to show what steps have been taken to trace unavailable witnesses or what would be required to secure the attendance of a witness outside the UK. What is reasonable will depend on the importance of the evidence, the reason for non-attendance, prejudice to the defendant and the cost of bringing the witness to court: see R v Castillo [] 1 Cr.

Provision focuses not on physical act of attending court, but on fitness when there to give evidence. If clearly shown that the party wanting to adduce the evidence was responsible for putting W in fear then cannot rely on this exception. T-C was charged with murder of G.

Pros case: this was revenge attack as T-C believed G had murdered S. A letter to T-C from a third party which bemoaned the fact that nobody had yet avenged S was admitted in evidence. S was charged with possession of ammunition. He said that he had been captured by terrorists and was at all times acting under duress due to their threats.

Evidence of what had been said to him by terrorists was not hearsay because it was not intended as evidence of the truth of the threats but of the fact they had been made and so gave rise to duress. R was charged with murdering his wife. She had called and said Get me police please. Operator described her voice as hysterical and she was sobbing.

G's wife has found hanged in their garage and he claimed she had committed suicide. The evidence of what the deceased had said was original evidence as to her state of mind at the time she wrote the notes that she was not suicidal.

Police officers gave evidence of offers of sexual services made to them by women at a massage parlour. The evidence was adduced to show the fact that offers had been made, not the truth of what was offered.

Log had been compiled by customs officers, using information from D. M was convicted of importing drugs in part on the evidence that a piece of paper with written calculations not in his hand for prices and weights of drugs had been found concealed in a house where he used to live. The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice. Help us to improve our website; let us know what you think by taking our short survey. Contrast Switch to colour theme Switch to blue theme Switch to high visibility theme Switch to soft theme.

Search for Search for. Top menu Careers Contact. Hearsay Updated: 10 September Legal Guidance. Hearsay evidence is inadmissible in criminal proceedings except where there is some statutory provision which renders it admissible or where a common law rule making it admissible is preserved by section CJA , or by agreement of all parties to the proceedings, or where the court is satisfied that it is in the interests of justice for it to be admissible section 1 CJA There is no absolute principle that a conviction based solely or decisively on hearsay evidence is unfair as there are counter balancing measures in the hearsay framework of the CJA to make the trial fair R v Horncastle[] 2 AC Written notice must be given under the Criminal Procedure Rules CrimPR to the other party and to the court when making an application to admit hearsay evidence in the following cases: in the interests of justice under section 1 d CJA ; where a witness is unavailable section CJA ; where the evidence is in a statement prepared for the purposes of criminal proceedings section 1 c CJA ; where the evidence is multiple hearsay section CJA Courts have an express power to exclude hearsay evidence section CJA and to stop a case where hearsay evidence is unconvincing section CJA Law The admissibility of hearsay evidence in criminal proceedings is set out in sections and of Chapter 2 Criminal Justice Act and applies to all criminal proceedings begun on or after 4th April section Criminal Justice Act Statement Section 2 defines a 'statement' as "any representation of fact or opinion made by a person by whatever means"; and it includes a representation made in a sketch, photo fit or other pictorial form.

Criminal Proceedings 'Criminal proceedings' means "criminal proceedings in relation to which the strict rules of evidence" apply section Criminal Justice Act , and includes: Trials; Newton hearings; A preparatory hearing, because when such a hearing is ordered, "the trial begins with that hearing" section 30 Criminal Procedure and Investigation Act and R v H [] 1 Cr.

R 4 ; A hearing pursuant to section 4A Criminal Procedure Insanity Act to determine whether the defendant did the act or made the omission charged R v Chal [] EWCA Crim ; Although not proceedings "in relation to which the strict rules of evidence apply" in proceedings under the Proceeds of Crime Act where the admissibility of a statement or the weight to be attached to it are of importance and seriously disputed, the court may be assisted by considering the factors referred to section 2 CJA as well as section Matter stated A 'matter stated' is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated - Section 3.

In R v Twist and Others [] EWCA Crim , the Court of Appeal strongly recommended avoidance of the difficult concept of the "implied assertion" because the CJA focuses on the 'matter stated', which it is sought to prove and suggested the following approach when considering whether the hearsay rules applied: identify what relevant fact matter the statement is intended to prove; ask whether there is a statement of that matter in the communication.

If not, then no question of hearsay arises whatever other matters may be contained in the communication ; If there was such a statement, ask whether it was one of the purposes not necessarily the only or dominant purpose 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, it is hearsay. If no, it is not. Three stage flow chart Download three stage flowchart PDF file, approx kb Exceptions to the rule against Hearsay Section 1 CJA provides four circumstances in which hearsay evidence is admissible in criminal proceedings: The CJA or any other statutory provision makes it admissible; It is one of the common law exceptions preserved by section see below All parties to the proceedings agree to it being admissible; or; The court is satisfied that it is in the interests of justice for it to be admissible.

If that is satisfied then the unavailable witness' evidence may be admitted if: the person is dead: Section 2 a : the person is unfit to be a witness because of their bodily or mental condition: Section 2 b ; the person is outside the United Kingdom and it is not reasonably practicable to secure their attendance Section 2 c ; the person cannot be found although such steps as it is reasonably practicable to take to find them have been taken: Section 2 d the person does not give or does not continue to give oral evidence through fear: Section 2 e.

See also Annex A for a table of exceptions under this section and potential challenges and Annex B for a list of useful cases with examples of statements held to be original evidence and not hearsay S. The additional requirements, which are set out at section 5 , are: That the witness is unavailable meeting the requirements under section above: dead etc.

Although admissibility is generally automatic, there is limited discretion under Section 7 given to the court to exclude evidence if satisfied that the statement's reliability is doubtful in view of: Its contents; The source of the information contained in it; The way in which or the circumstances in which the information was supplied or received; or The way in which or the circumstances in which the document concerned was created or received.

See also Annex B for a list of useful cases with examples of statements held to be original evidence and not hearsay S. Note the need for the report to comply with CrimPR This evidence will usually also be admissible under section CJA business documents but prosecutors should be aware of the restrictions on compellability imposed by section 6 : a bank officer cannot be compelled to give any evidence or produce any exhibit which could have been proved under the Act.

The remaining common law exceptions which are most likely to be encountered are as follows: Res Gestae Res Gestae statements are broken down into three types: Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded; Statements accompanying an act which can only be properly evaluated in conjunction with the statement; Statements relating to a physical or mental state. Witness emotionally overpowered The event giving rise to the overpowering emotion must be the criminal act itself.

In answering that question the judge must have regard to: how startling or dramatic the event was; how spontaneous the statement was; whether the triggering event was still operative when the statement was made; Any special features relevant to the possibility of distortion or concoction e.

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