An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings
The term "hearsay" has entered the realm of day to day speech for many nonlawyers, and it describes something that most people believe they have something of a limited intuitive sense about - it is generally understood as referring to what "he said" or "she said," particularly on the part of 'witnesses' who in family law cases tend to be the parties themselves, their family members or children, friends, neighbors, co-workers, teachers, therapists, doctors, or police. Often those witnesses are never interviewed directly by the Court, or cross-examined, and instead what they said or saw is offered in written statements that get filed before a hearing. Hearsay rules apply equally to what the parties themselves may have said or be alleged to have said, whether in their declarations or in live-testimony.
Together with the assumption that testimony involving hearsay statements is problematic and may be ignored or excluded by judges, however, that is usually about as deep as the public understanding goes. If you are a self-represented party in a contested dissolution or child custody proceeding (or any other family law matter), it may be useful for you to become a familiar with the concept because it can be a critical sword for getting evidence you consider favorable to your cause in front of a judge or court commissioner, or as a shield to block claims from the other side that you don't want the court to hear or consider. Indeed, the hearsay rules have particular application in family law because much of such litigation involves accusations and counter-accusations that go on endlessly, many of which are quite "over the top" in terms of their tone and substance. Since live witness testimony must be taken upon request in domestic violence cases, this is often an area where it is critical for people without lawyers to have a basic understanding of the rules of evidence.
Some divorce litigants feel that they can say whatever they want, or use hearsay in a hope of inflaming bias in a judge to obtain what the litigant hopes for, and that even if a court sustains an objection to the hearsay (and "strikes" the statement(s) from the record) a bell has been struck that will continue to ring into the future in terms of a court's impressions of you. And, unfortunately, there is some truth to this - which is a good reason for knowing what to do with it at the outset.
Hearsay in family court proceedings is quite commonly found in declarations filed by the parties in connection with motion or OSC requests, whether these consist of the parties' own statements or the statements of third parties. Affidavits or statements "under penalty of perjury" are themselves hearsay. Documents that are attached as exhibits to a declaration, like bank statements, school grade reports, police reports, and a myriad of other possibilities almost always contain or are 100% hearsay. Hearsay often occurs in live testimony during contested evidentiary hearings or trials. If it is not properly objected to, the court may well consider such "evidence" even though by its nature it may be of questionable veracity and reliability. And hearsay is quite often communicated to judges under the guise of "argument" in oral presentations to the court. Even when a judge recognizes some statement as hearsay (whether or not an objection is made), one never knows if the court will ignore it: generally the statement gets uttered and then a ruling is made. Responsible, ethical lawyers tend not to attempt to circumvent the hearsay rules - but I see attorneys use it improperly all the time.
So what is it? Essentially hearsay is "an out of court statement, offered for the truth of the matter asserted." Evidence Code § 1200. Such evidence is supposed to be inadmissible, "except as provided by law." The exceptions to the hearsay rule are vast and complex. Many lawyers and some judges have difficulty understanding the rule and applying the exceptions - no surprise if you do! Indeed, if you intend to object to hearsay evidence, or to introduce testimony that may fall into an exception and so be admissible, you may be unsuccessful unless you can quote rhyme and verse concerning the elements of these exceptions to a judge - especially with the more uncommon ones. Remember, just because something fits the definition of "hearsay" does not mean that it is going to be excluded from admissibility. Instead, their is a multi-tiered analysis that must be undertaken and if each element of, for instance, is met then the statement is coming into evidence.
Hearsay is not limited to oral statements. It includes conduct that can be viewed as assertive, most obviously with gestures like nodding or shaking of the head. Even silence in the face of an accusation can be viewed as a hearsay "statement" that constitutes an "admission" under certain circumstances.
"Out of court" means in a setting other than by a witness who is testifying at, or in connection with, the current hearing or trial. If the statement was made or heard outside the courtroom, or is a document created outside the presence of the court (which is almost always the case), it is hearsay. But, again, just because it is doesn't mean the statement will be excluded if other conditions can be met. It is entirely possible to have multiple hearsay - levels of statements overheard and repeated. A proper analysis must be applied to each segment.
Some things look like hearsay but aren't. This is because in order to constitute hearsay, a statement must be "offered to prove the truth of the matter asserted." If the speech or conduct that is being testified to is (supposedly) being offered for a different purpose than proving that its content was true, then the court may conclude it is not hearsay at all. Most commonly this is the case with testimony that is offered to prove "state of mind" or the effect of the statement of the listener. For instance, maternal grandmother is asked to describe a conversation with granddaughter to explain why she left with the child that night to take her to grandma's own home. The essence of the conversation between grandmother and granddaughter is that "daddy just hit me." While (ignoring any hearsay exceptions for this example) it is clearly hearsay for Mom or her attorney to have grandmother testify to what granddaughter said to prove that daddy indeed hit her, it is not hearsay to offer that statement to explain why grandmother left with the child that night, or the fact of the statement itself. Granddaughter's statement may be offered to prove grandmom's (and possibly granddaughter's) state of mind - not that the hitting in fact occurred (i.e., the truth of the matter asserted). However, as you will immediately notice, a major pitfall arises for father in that proceeding because the court has now heard the accusation even as it proclaims that it is not considering that evidence as proof that the child was struck. It takes an exemplary judge to be able to separate out in their own minds the implication that would not be admissible from the purpose for which the testimony was allowed. Most lawyers faced with this sort of "evidence" will quickly respond to an objection to this material with "your Honor, this testimony is not being offered for the truth of the matter asserted. It is being offered as to this witness' state of mind, and to explain why she left with granddaughter." As you can imagine, clever lawyers (or pro pers) may be able to taint the process by getting questionable evidence in that would otherwise be excluded.
The hearsay definition includes the statements (or acts) of the parties themselves. A statement by wife that "my husband, Mark, told me he had removed $20,000 in cash from our safe deposit box two days before I filed for dissolution," if offered to prove that there was $20,000 in that box, and/or that Mark in fact misappropriated it, is hearsay. However, one of the important areas where hearsay exception renders otherwise inadmissible evidence as admissible involves statements by the litigants themselves. Such statements are labeled "party admissions."
Any statement that satisfies the admission's exception is any out of court statement by a party to the action that is inconsistent with a position that they are now taking. Here, if Mark denies having taken the money, or that it ever existed, wife's statement comes in as an exception to the hearsay rule. You can imagine the liar's contests these rules serve to create, and the difficulty it creates for cautious judicial officers. As a practical day to day reality in family courts, many judges allow just about any statement that is directly attributed to the other party to come into evidence. Strictly speaking, this may well result in a misapplication of the rules. Whether evidence that should not have come in but that does get (erroneously) admitted forms the basis of a set aside or an appeal of a judge's ruling is way beyond the scope of this Blog. Suffice it to say that some evidence rulings that are wrong may be viewed as prejudicial and as warranting a reversal, while most are considered by the appellate courts as "harmless error."
Here is a short list and description of some the most useful hearsay exceptions:
Admissions are described above.
- Declarations against interest
A nonparty's out of court statement may be admissible as proof of the matter asserted if certain threshold criteria can be established. The declarant must be unavailable to testify as a witness; they must be shown to have had personal knowledge of the subject matter; the statement must have been against the declarant's interest when it was made (i.e., something that was damaging to them or their interests); and the statement must have other indicia of reliability that the court finds warrants admission.
Where the declarant has previously testified under oath in another action or proceeding, that testimony may be admitted if certain conditions are met.
- Prior consistent and inconsistent statements
A witness' out of court statement may be admitted as proof of the matter asserted if it is inconsistent with the witness' testimony at the current proceeding. For instance, assume that "Fred" accompanied Mark, in the example above, to the bank to remove $20,000 from the safe deposit box. Fred confirmed this to wife's best friend Marge a few days after Mark made his admission to wife that he took the money. Wife now wishes to corroborate her story of what Mark said to her and did, because - after all - Mark will deny ever having said or doing any such thing, and this leaves the question open for the trial court to the extent it is a "he said, she said" situation between the two parties. Wife has the burden of proof on the issue, so reliable corroboration may be critical to swinging the judge into finding the money existed and was taken by Mark. Fred is not a party to the action, so his statement does not qualify as an "admission." Fred is called to the stand and is asked "did you accompany Mark to the bank and witness him open the box and remove $20,000?" [Note - this is objectionable as a compound question, and would be asked the same thing in a series declarative questions to overcome that objection]. Fred answers "no way, I don't know what you are talking about." Wife next calls Marge as a witness, and she recounts what Fred said to her - i.e., that he accompanied Mark, and what Mark did. Fred's earlier, out of court statement to Marge, directly contradicts his trial testimony, and so comes into evidence as a prior inconsistent statement.
This exception permits out of court statements to prove the truth of the matter asserted to come into evidence, when certain factors exist that courts assume indicate reliability can be established. Spontaneous declarations purport to narrate or describe or explain an act, condition or event that was witnessed by the declarant. The statement sought to be admitted must have been made "spontaneously" while the declarant was under the stress or excitement caused by such a perception.
Wife and Mark are having an argument at home. Paternal grandmother rents a room. She observes wife slap Mark. That grandmother immediately calls her best friend, Ruth, to ask what she should do - and she is crying and clearly distraught and describes what she saw. Now weeks later, grandmother has returned to her home in Florida and is not available to be called as a witness for Mark at Mark's DV hearing. However, Ruth is. Ruth takes the stand and Mark's attorney attempts to get into evidence what Mark's mother said. It is hearsay. However, Ruth's testimony about what Grandma said may come into evidence as a spontaneous declaration.
- Statements of physical or mental condition
These are distinct from the issue that arises when out of court statements are offered as circumstantial evidence of the declarant's state of mind, discussed above. Instead this exception relates to present or past physical and/or mental conditions or states.
This can be a very important exception to know. Business records are admissible for the proof of what is contained in them (a) to prove the occurrence or existence of an act, condition or event recorded in the business record and (b) to prove the nonoccurrence or nonexistence of an act, condition or event not recorded in the record. There are requirements that must be met, which are contained in Evidence Code sections 1271 and
For instance, wife in our safe deposit box example subpoenas the bank's records to show that Mark accessed the safe deposit box days before separation. The bank produces the sign in sheets containing Mark's signature. This sign in sheet is hearsay - it is being offered to prove the truth of the matter asserted, that Mark accessed the box - which is circumstantial evidence that something was in it that might have been removed. Assuming a proper foundation is laid, the records come into evidence over the hearsay objection as "business records."
This hearsay exception deals with records maintained by public entities. Such records are assumed to be more or less inherently reliable.These typically relate to vital statistics (i.e., birth records)
There are a number of other exceptions that may be important for you in any given situation.
The problem with hearsay evidence is that it is frequently unreliable and hence untrustworthy. Court's can't watch the demeanor of the declarant at the time they made the statement, and people unfortunately have all kinds of incentives to lie, minimize or exaggerate. While you need to fit your objections or the hearsay evidence you hope to introduce into a recognized exception to get it admitted, remember that the key is do everything in your power to show why the testimony can, on balance, be trusted. Knowing these rules can be an effective weapon for getting evidence excluded that you disagree with or find unfavorable. Often the other party has no idea how to respond, which is one good justification for the money that lawyers charge.
Also, remember that hearsay objections, if not timely made, are waived, especially for purposes of appeals. Many judges will disregard them on their own, but there is no certainty that they will and except when a statement of decision is requested or given one rarely knows what evidence the court ultimately relied on in reaching its findings. Hearsay has a subtle way of spinning the proceedings, and should be avoided IMHO.
Finally, keep in mind that all hearsay issues require you to consider the following analysis:
- Is the evidence you want to admit relevant to some issue in the proceedings? If not, it will not be admitted and no further analysis is required.
- Has proper foundation been laid to otherwise get it admitted?
- Is it hearsay?
- If it is hearsay, what exceptions apply?
- Even if it is other admissible, should it be excluded on some other ground set forth in Evidence Code section 352?
Good luck out there!
Thurman Arnold, III, CFLS