An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings
We give the best divorce and family law advice available on the Internet
- here's a primer about the "hearsay rule."
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.
What is Hearsay?
Most basically, "hearsay" is an out of court statement offered
to prove the truth of matter asserted. It chief characteristic is that
it is what someone else said, who was outside the presence of the judicial
officer when the said it. Hearsay is therefore not subject to cross-examation,
in order to test its accuracy. The out of court declarant is not available
to testify, for whatever reason. Hearsay includes out of court statements
of the parties themselves, but there are exceptions to the hearsay rule
that allow those statements to be repeated, generally called "party-admissions".
You can always testify to what the other party said outside the proceedings;
you just cannot testify to what, for instance, their mother said.
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. Experienced
lawyers know the exceptions. But many lawyers, and most non-lawyers, are
confounded by them.
Hearsay can be double or triple layered. "My mother said that she
heard my wife say, that our son said, he watched her hit our daughter."
A proper analysis, as to exceptions, must be applied to each segment.
Family Law Declarations and Hearsay
Hearsay in family court proceedings is quite commonly found in declarations
filed by the parties in connection with motion or RFO 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
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
Hearsay Includes Conduct
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.
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.
Examples of What Is and What is Not Hearsay
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."
Overview of Hearsay Exceptions
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. Because this page gets thousands of reads, I know
the subject matter is important to you. I will come back and address other
important evidence issues.
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.
Whether or Not to Make a Hearsay Objection?
Hearsay objections, if not timely made, are waived, especially for purposes
of appeals. All you need say is "objection, your honor, hearsay.
Ms. Smith is recounting what somebody else said out of court." Many
judges will disregard the improper evidence 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 that 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 a proper foundation been laid to get it admitted?
- Is it hearsay?
- If it is hearsay, what exceptions might apply?
Even if it is otherwise admissible, should the testimony be excluded on
some other ground set forth in
Evidence Code section 352?
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Author: Thurman Arnold, III, CFLS