Multiple-Choice Questions Chapter 2
Criminal and Civil Evidence12th ed. (2011-2012)
(a) Dave is charged with the murder of Violet. When Wasim and his friends found Violet lying in an alley shortly after she had been stabbed, Wasim found a piece of paper in her hand, on which she had written, “it was Dave who stabbed me”. Violet then regained consciousness and said to Wasim, “the man who stabbed me was Dave”. Dave then returned to the scene of the crime with two other men, Wasim said to Violet, “which one of them stabbed you” and Violet did not speak but pointed at Dave. The prosecution wish to rely upon the three statements made by Violet as evidence that Dave stabbed her. They also wish to call Dave’s girlfriend, Julie, who will testify that she had noticed that Dave was carrying a knife when he left their flat on the morning of the murder.
Which one of the following four propositions is true?
[a] Violet’s first statement is not a hearsay statement, because it was made in writing,
[b] Violet’s second statement is not a hearsay statement, because it was made orally.
[c] Violet’s third statement is not a hearsay statement, because it was made by conduct.
[d] Julie’s evidence will not be hearsay evidence.
The correct answer is [d]. See textbook 2.1.1. None of Violet’s three statements were made in oral evidence in the proceedings and they are all being relied upon as evidence of a matter stated (i.e. to prove that it was Dave who stabbed Violet), so they are all hearsay statements (see s.114(1), considered at textbook 2.1). The s.115(2) definition of statement includes representations of fact or opinion made by a person by whatever means, and thus includes written statements, oral statements and statements made by conduct. Julie’s evidence will not be hearsay evidence, however, because her statement will be made in oral evidence in the proceedings. [Note: all three of Violet’s statements will, potentially, be admissible under exceptions to the hearsay rule (see textbook 4.1 and 5.1.1).]
(b) Oliver is charged with criminal damage, the prosecution alleging that Oliver vandalised a telephone box. The prosecution wish to adduce in evidence at Oliver’s trial a statement made to the police by Arshad, a friend of Oliver’s who was with Oliver when Oliver vandalised the telephone box. Arshad now lives abroad and is not prepared to return to the United Kingdom for the trial. In the statement Arshad stated that he had been with Oliver when Oliver had smashed the windows of the telephone box with a hammer. The prosecution intend to rely on the statement to prove that Oliver smashed the windows of the telephone box with a hammer.
Which one of the following propositions is true?
[a] The statement is not a hearsay statement because it was made out of court.
[b] The statement is not a hearsay statement because the prosecution are not relying upon it as evidence of the matters stated.
[c] The statement is not a hearsay statement because it is a written statement.
[d] None of the above propositions are true.
The correct answer is [d]. See textbook 2.1.3. The statement was not made in oral evidence in the proceedings and the prosecution seek to rely upon it as evidence of matters stated (i.e. to prove that Oliver smashed the windows of the telephone box with a hammer) and consequently the statement is a hearsay statement (see CJA 2003, s 114(1), considered at textbook 2.1). A written statement, just like an oral statement, is capable of being a hearsay statement (see CJA 2003, s 115(2), considered at textbook 2.1.1). [Note: the statement may be admissible under a hearsay exception (see, for example, textbook 4.1.]
(c) Colin Block is charged with the murder of Olive. There were no eyewitnesses to Olive’s murder, which took place in her bathroom. Jane, Olive’s sister, is willing to testify that a few minutes before the gun shot which caused Olive’s death, Jane heard a man’s voice in Olive’s bedroom, the man saying, “we will need to buy some new bathroom towels as these ones are nearly warn out”. Jane recognised the man’s voice as that of Colin Block.
Consider which one of the following four propositions is correct.
[a] If the prosecution wish to rely upon Jane’s evidence to prove that Jane heard Colin’s voice coming from Olive’s bedroom a few minutes before she heard the gun shot, her evidence will fall within the ambit of the hearsay rule.
[b] Jane’s evidence does not fall within the ambit of the hearsay rule because oral statements do not fall within the ambit of that rule.
[c] If the prosecution wish to rely upon Jane’s evidence to prove that Jane heard Colin’s voice coming from Olive’s bedroom a few minutes before she heard the gun shot, her evidence will not fall within the ambit of the hearsay rule.
[d] Jane’s evidence will not fall within the ambit of the hearsay rule because a statement that was made by the accused cannot fall within the ambit of that rule.
The correct answer is [c] is correct. See textbook 2.1.3. The fact that Jane heard Colin’s voice in the bedroom does not fall within the ambit of the hearsay rule as the prosecution are not relying upon her evidence as evidence of a matter stated (CJA 2003 s 114(1)). It is untrue to say that oral statements do not fall within the ambit of the hearsay rule as the statutory definitions of “statement” is wide enough to encompass such statements (see CJA 2003 s 115(2), considered at textbook 2.1.1). There is no rule to the effect that statements made by the accused cannot fall within the ambit of the hearsay rule, though such a statement may fall within the ambit of one of the rule’s exceptions (for example, as is seen in textbook Chapter 3, such a statement may be admissible as a confession).
(d) Bill is charged with the theft of an antique clock. At Bill’s trial, the prosecution, for the purpose of proving that Bill stole the clock, wish to adduce evidence of a statement made to the police by Sheila, an eye-witness, who told the police that she saw Bill commit the theft. Sheila is now dead and, thus, is not available to testify at Bill’s trial..
Consider the following two propositions.
(i) Sheila’s evidence cannot be admissible because it is not relevant to an issue in the proceedings and irrelevant evidence is not admissible.
(ii) Sheila’s evidence cannot be admissible because it falls within the ambit of the hearsay rule and hearsay evidence is never admissible in criminal proceedings.
Which of the above propositions is/are true?
[a] (i) only.[b] (i) and (ii).[c] (ii) only.[d] Neither of the above propositions is true.
The correct answer is [d]. See textbook 2.1.3.1. Evidence that is irrelevant is inadmissible, but Sheila’s evidence is clearly relevant to an issue in the proceedings, i.e., to prove that Bill stole the clock. Sheila’s evidence is clearly hearsay evidence, because her statement was not made in oral evidence in the proceedings and is relied on as evidence of the matters stated (see s.114(1) of the 2003 Act, which is considered at textbook 2.1). Hearsay evidence may, however, be admissible if it falls within an exception to the hearsay rule (see, textbook 4.1 for a likely hearsay exception).
(e) Horace is charged with robbery and pleads not guilty. At Horace’s trial, Joseph, the victim, testifies that he was walking down an alleyway carrying a briefcase full of money when he suddenly heard footsteps and someone struck him on the head from behind, rendering him unconscious. When he awoke, the briefcase was gone. When the police searched the alley they found a heavy wooden walking stick, which could have been used to knock Joseph out, on which were a set of Horace’s fingerprints. When the police searched Horace’s flat they found a briefcase, which Joseph subsequently identified as the briefcase that had been stolen from him during the robbery. Sue, an identification witness identified Horace at an identification parade as the man whom she had seen outside the alley carrying a wooden walking stick five minutes before the robbery was committed. When the police interviewed Horace he denied that he was the robber. He admitted that the walking stick was his but claimed that he had lost it on the day before the robbery. He denied that he had been in the vicinity of the alley on the day of the robbery. He claimed that he had bought the briefcase from a stranger in a public house on the day after the robbery was committed.
Consider the following three propositions.
(i) The evidence against Horace is all circumstantial evidence.
(ii) The judge must direct the jury not to convict Horace because a conviction cannot be based exclusively upon circumstantial evidence.
(iii) As a matter of law a judge must always direct the jury to exercise extreme caution before convicting exclusively upon circumstantial evidence because circumstantial evidence always carries little weight.
Which of the above propositions is/are true?
[a] (i) only.[b] (i) and (ii) only.[c] (i) and (iii) only.[d] None of the above propositions are true.
The correct answer is [a]. See textbook 2.1.3.2. The evidence is all circumstantial evidence as none of it directly connects the accused to the commission of the crime. [If Sue had seen Horace commit the robbery, her evidence would then, of course, have been direct evidence.] A conviction may be based exclusively upon circumstantial evidence and the law does not require the giving of such a special direction, though it might be sensible for the judge to give part or all of the Judicial Studies Board’s specimen direction. [A special direction will be required in relation to the evidential significance of Horace’s lies to the police (see textbook 12.4 ).]
(f) Umar was walking along a street when a man, running in the opposite direction, who was carrying a blood stained knife, ran past him. A third man, who was standing in a shop doorway, shouted to the running man, “Hello Alvin”, but the running man did not answer and kept running. When Umar walked round the corner he found Fred, who had just been stabbed, lying in a pool of blood. Before he died, Fred said to Umar, “I was stabbed by the man who stole my wife” .Fred’s wife had, in fact, recently left Fred for Alvin. . Alvin is charged with the murder of Fred. The prosecution intend to call Umar as a witness both to repeat the statement made by the man in the doorway (relying on this statement as evidence that the running man carrying the knife was Alvin) and to repeat Fred’s statement, for the purpose of proving that Fred was stabbed by the man who stole his wife (i.e., by Alvin).
Consider the following two propositions.
(i) The statement made by the third man is a hearsay statement.
(ii) The statement made by Fred is a hearsay statement.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [b]. See textbook 2.1.4. The statement made by the third man does not appear to be a hearsay statement because it does not appear that the man in the shop doorway will have made it either for the purpose of causing a person to believe that the running man was Alvin or for the purpose of causing a person to act or a machine to operate upon that basis (see CJA 2003 s 115(3)). The statement made by Fred is a hearsay statement because it was not made in oral evidence in the proceedings and is relied upon as evidence of the matter stated (i.e. to prove that Fred was stabbed by the man who stole his wife) (see s.114(1) of the 2003 Act, which is considered at textbook 2.1). Whilst Fred did not expressly state that he had been stabbed by Alvin, and the jury would be asked by the prosecution to infer that it was Alvin to whom Fred was referring, it appears that Fred did make the statement with the intention of making Fred believe the “matter stated” (i.e. that he had been stabbed by the man who stole his wife, namely, Alvin). The statement may, of course, be admissible under a hearsay exception (see, for example, textbook 4.1 and 5.1.1).
(g) Margaret is charged with the theft of a vintage M.G. sports car. She denies that she committed the offence and claims that she has no interest in M.G. sports cars. In order to prove that Margaret was at her place of work on the date and at the time upon which the offence with which she is charged was committed, the defence wish to adduce in evidence a printout produced by a machine belonging to her employers. Employees all touch a special pad when they pass through the factory gates. The machine, via their fingerprints, then automatically logs their arrival at work. The prosecution, in order to prove that Margaret is a member of a club dedicated to the preservation and restoration of M.G. sports cars, wish to adduce in evidence a printout from a database produced by the club’s computer. The computer produced the printout after processing data which human operators typed into the computer. Finally, the prosecution wish to adduce in evidence a printout of an e-mail to the police, typed by Victor, a colleague of Margaret’s, who stated in the e-mail that he saw Margaret commit the offence. Victor is now dead.
Consider the following three propositions.
(i) The printout produced by the employer’s machine is not a hearsay statement.
(ii) The printout from the club’s database is not a hearsay statement, but it will only be admissible if it is proved that the information supplied to the computer was accurate.
(iii) The printout of Victor’s e-mail is not a hearsay statement.
Which one of the above propositions is/are true?
[a] They are all true.[b] (i) and (ii) only. [c] (iii) only. [d] They are all false.
The correct answer is [b]. See textbook 2.2.1. The printout from the employer’s machine does not fall within the ambit of the hearsay rule because it was not made by a person and thus is not a statement (CJA 2003, s.115(2)). [Note: since it appears that the printout does not depend for its accuracy upon information supplied by a person, it appears that the s.129(1) admissibility requirement does not apply.] The printout from the club’s database does not fall within the ambit of the hearsay rule because it was not made by a person and thus is not a statement (CJA 2003, s.115(2)). Since the printout does appear to depend for its accuracy upon information supplied by persons, however, it appears that the s.129(1) admissibility requirement (requiring proof of the accuracy of the relevant information) does apply. The statement in the e-mail is a statement within the s.115(2) definition, because it was made by a person, and it is thus a hearsay statement, because was not made in the proceedings and is relied on as evidence of the matters stated (see s.114(1), which is considered at textbook 4.1). [Note: the e-mail statement may be admissible under an exception to the hearsay rule (e.g., see textbook 4.1.]
(h) In order to prove that Michael committed a burglary, the prosecution wish to adduce both a video recording recorded by a security system in the burgled house which shows Michael committing the offence and a video recording of a conversation between Michael and his girlfriend which took place while they were testing their new video camera, during which Michael admitted that he had committed the burglary.
Consider the following two propositions.
(i) The first video recording is real evidence and is not a hearsay statement.
(ii) The statement made by Michael is a hearsay statement even though it was video recorded if it is relied upon by the prosecution as evidence that Michael admitted that he had committed the burglary.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [c]. See textbook 2.2.2. The first video recording is real evidence that does not fall within the ambit of the hearsay rule because it does not contain a representation made by a person (CJA 2003 s 115(2)). The statement made by Michael is a hearsay statement even though it was video recorded because the recording does contain a representation that was made by a person, the statement was not made in oral evidence in the proceedings and it is being relied on as evidence of the matter stated (i.e., to prove that Michael committed the offence) (see s.114(1), which is considered at textbook 4.1).[Note: the statement made by Michael may well be admissible as a confession (see textbook Chapter 3).]
(i) Horace is charged with handling a stolen video camera. In his defence, Horace asserts both that the camera was not stolen and that he honestly believed that it was not stolen when he bought it. In support of his defence, Horace wishes to testify that the man from whom he bought the video camera in a public house said to him, “The camera is cheap but it’s not stolen”. Horace does not know the man’s name and the man cannot be located.
Consider the following four propositions.
(i) If Horace relies upon the man’s statement to prove that the camera was not stolen, the statement falls within the ambit of the hearsay rule.