In a nutshell, hearsay is “he said, she said” testimony. It is second hand information during a court proceeding that courts don’t allow. That’s the level on which most people understand it. Indeed, they’ve heard the words, “That’s hearsay, Your Honor”, in every courtroom drama they’ve watched. They generally understand what it means or think they do.
But when you’re a pro se litigant in the thick of a case, and the attorney for the other side uses hearsay testimony against you, that’s a whole new world. How can that lawyer get away with that when everyone knows hearsay is not allowed? Outrageous. Yes and no.
There are hearsay exceptions. Let’s take a deep dive into the legal concept of hearsay, recognize it, combat it, or maybe even learn how to use an exception or two of our own.
Hearsay is a court statement based on what a witness heard someone else say. When the statement is presented as truth, the judge will generally bar it because the witness has not directly experienced the event to which they are bearing witness. Neither can the witness testify to secondhand information from documents or someone else’s nonverbal communication, like nodding the head. Broadly, hearsay is not valid evidence because then gossip might influence the outcome of a case.
However, many circumstances exist that can transform hearsay into a potentially useful piece of evidence. Federal and state rules contain exceptions, occasions when hearsay may be treated as evidence.
A Hearsay Scenario
Secondhand information frequently comes into play in family court during divorces and child custody disputes. For example, hearsay might arise in a case of a father fighting to retain shared custody of children after the mother accuses him of alcohol abuse. Her allegations, however, appear to be hearsay because she said that her brother told her that the father had been drinking heavily before picking the kids up from school. This is hearsay because she cannot assert this truth on the basis of her own experience. She did not see the father’s intoxicated state but instead offers what someone else told her.
Let’s say you’re the father in the above scenario. You do drink some, but not too much. You read in a court document an account by your ex wife of you picking up the children from school while drunk. Your ex wrote the statement as if she’d been there, and her attorney presented it as fact. That’s hearsay. You know it is. You’re angry at both the attorney and your ex. You prepare yourself to argue the hearsay rule.
In the absence of any mitigating factors, this scenario indeed illustrates objectionable hearsay, but numerous exceptions could transform the situation.
Exceptions to the Hearsay Rule
Under Rule 801(d) of the Federal Rules of Evidence, a person’s admission can create a hearsay exception. If you’re the father fighting for child custody in the above scenario, and you made a statement admitting to picking up your children from school after drinking, then the story told by your ex about what her brother said could become acceptable evidence. If in fact you made a similar statement at a deposition or hearing, even if it appears that the lawyer twisted your words, you might be in peril.
Prior statements given in hearings, depositions, or under oath at trial could provide source material for determining if hearsay qualifies for an exception. Statements don’t have to contain outright admissions to trigger an exception. Even inconsistencies between statements enable an opposing party to question someone’s credibility. A way to defeat the exception might be to prove that the statement made was regarding a long gone era and had nothing to do with the situation the wife described in her statement. In other words, provide as much distance between the two statements as you can so that it appears as if you’re talking about apples and oranges.
Other exceptions to the hearsay rule include present sense impression, excited utterance, state of mind, and availability of a declarant.
Present Sense Impression
The present sense impression exception may allow a witness to testify about a statement given by another party if it was spoken in the heat of the moment during the event that is at issue in the legal case. The law considers the excitement and immediacy of an emotional situation to increase the likelihood that someone spoke honestly.
A present sense impression exception might be possible in the child custody example, if the mother recounts how upset her brother was after he saw the father of his nieces and nephews intoxicated when he was picking them up from school. The former brother in-law was at the school because his kids also attend it. He attempted to confront the man about drunk driving with the kids, but he drove off anyway. The brother then called his sister, the mother, immediately and reported what happened.
Excited Utterance & State of Mind
Similarly, the excited utterance rule might apply in this situation. To meet the standard for this exception, the statement must have occurred during a stressful or startling event. Statements that contribute to the understanding of someone’s emotional, mental, or physical condition might also earn an exception. Such a statement might not be meant to prove a truth but is offered instead to explain how state of mind influenced the legal matter at hand.A statement that reveals the father’s state of mind during the incident outside the school with the mother’s brother could become admissible. If the father said to the brother that he “didn’t care what happened” when he drove away drunk with his kids, then the mother might be able to relate this information in court because it indicates that the father was thinking recklessly.
Availability of Declarant
Many more exceptions revolve around the availability of a declarant. If that person cannot or will not appear to testify, then someone else’s testimony about what the declarant said, did, or wrote may be allowed. The fictional child custody case might have to allow the mother’s hearsay statement if her brother has since died in an accident.
Hearsay When You Need It
Every self represented litigant can end up on either end of the hearsay rule. If you want to eliminate the threat of hearsay, draw a line as straight as you can from a statement made to the evidence that ends up in court. Strengthen your case with direct testimony rather than secondhand testimony. If you need to rely on an exception, persuade the judge that your exception is supportable. You’ll likely need more case law than your opponent, but look to the elements (rules) for each exception and see if you can’t find one that works.
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