Hearsay and the risk it poses to Art 6 fair trial rights by Louise Hewitt

2024-03-12 11:39:41 UTC

It may lack reliability and firsthand verification, potentially leading to wrongful convictions or miscarriages of justice. Additionally, the accused's ability to confront and challenge the evidence against them may be compromised, violating their right to due process and a fair trial.

Faulty perception, deficiencies in memory

2024-03-12 11:40:03 UTC

prevents one person testifying to the truth of what they have been told by another person

Risks to Fair Trial

2024-03-12 11:42:03 UTC

• If hearsay is the only evidence used in the trial and it has to holistically review the fairness of the evidence and weigh the fair trial rights against the rights to safeguard the evidence, the presumption of innocence is undermined….

•this then creates a reverse burden as then then d as they are not presumed to be innocent and have to prove that the hearsay is not true

there are dangers within hearsay such as insincerity, faulty perception. May be inadmissible on the grounds that the statement may be based on the maker’s flawed memory of events.

2024-03-12 11:43:04 UTC

cross examination is not possible on a hearsay statement preventing the opposing side from scrutinising the statement in front of a jury.

the credibility of a witness can not be viewed by the jury as seen in lockley and corah 1996, where the jury would have seen the witnesses disposition towards lying.

2024-03-12 11:43:20 UTC

Hearsay poses a risk to fair trial rights because it allows for the introduction of potentially unreliable or false evidence without the opportunity of cross examination which is crucial for testing the reliability and accuracy of evidence

2024-03-12 11:44:16 UTC

Hearsay is not the best evidence to rely on based on the risk of distortion as a statement may be interpreted completely differently/out of context. Therefore, this makes it unreliable as the danger is not with first hand hearsay it is more a problem with second hand hearsay as the person giving evidence has no knowledge of the facts. Hearsay evidence is not on oath, furthermore resulting in the evidence not being reliable.

2024-03-12 11:47:02 UTC

ECHR Art 6(3)(d) articulates a right to witness examination as one component of the (human) right to a fair trial. Conversely, hearsay is often reliable and sometimes the best available evidence. Hearsay doctrine must balance these conflicting considerations

2024-03-12 11:47:36 UTC

Issues with hearsay and fair trial:

the general rule of hearsay is that it is not admissible in evidence however there are exceptions to this rule which make hearsay evidence inadmissible.

Risk of prejudice- hearsay may carry a higher risk of prejudice compared to direct evidence. Undue weight may be given to statements, particularly if they are emotionally charged. Can lead to decisions based on hearsay that are more influenced by its dramatic impact rather than its probative value - jeopardises the fairness of trial. It is also based on the judge’s discretion, which undermines the right to be judged by your peers

2024-03-12 11:47:38 UTC

Hearsay evidence may risk one’s right to a fair trial as it is hard to entirely investigate the credibility of an anonymous witness. The defendant has no opportunity to assess the demeanour of the witness and the defendant’s ability to examine a witness is unequal to the Crown’s. Article 6 of the Convention enables the defendant the right to examine or have examined witnesses against him - regarding the latter, it may pose conflict with this Article.