What the Heck is Hearsay?

Anyone who is entangled in litigation needs to understand this concept. “Hearsay” is a lawyer’s term of art; it refers to testimony or documents offered in court that quote someone else who is not present in the courtroom. (The someone else is called “the declarant,” and is the person who originally spoke or wrote the hearsay.) It is an out-of-court statement offered as evidence as proof of the matter asserted.

Hearsay is usually deemed inadmissible because the party opposing the party who offers it can’t cross-examine the declarant in order to find out how reliable or honest or trustworthy the statement is.

In short, a judge worth his salt cannot allow it into evidence because it lacks a first hand witness in the witness chair.

For example, while testifying in his and Pam’s divorce trial, Paul tries to testify that Pam’s best friend, Patty, told him that Pam had cheated on him. Because Pam’s lawyer cannot cross-examine Patty to ask her how she knows this information, a judge should not allow Paul’s testimony in. Paul can only get the information in if he puts Patty on the stand to testify to it (and to be cross-examined by Pam’s lawyer).

Exceptions to The Rule

That said, you should also be aware that there are many exceptions to the hearsay rule. They are denominated as hearsay exceptions because they are innately honest, trustworthy, or otherwise reliable, by their very nature. So, some of the more common exceptions are:

  1. A statement describing an event or condition, made while or immediately after the declarant perceived that event or condition;
  2. An excited utterance;
  3. A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition;
  4. A statement made for medical diagnosis or treatment;
  5. Family records; and
  6. Reputation concerning character.

So What?

If you are a party who plans to present your case in court, it is important for both you and your attorney to understand the concept of hearsay. Not only can your opposition use it to prevent you from entering critical information into evidence if you come to court unprepared, but you can use it to exclude damaging information by your opposing party so that the judge doesn’t hear it. If you are prepared, you can ensure that the witnesses you need in order to get your critical information into evidence are in court with you to testify.

Even if you plan to represent yourself, you should consult with a trial lawyer before your hearing so that you are prepared to object or to respond to objections to ensure that your evidence is admitted by the judge. I have prepared many a client to represent him (or her) self and, thus far (knock on wood!), every single one has been overjoyed by the results he obtained at trial.

Be sure to prepare for your trial or evidentiary hearing with your lawyer in advance so that you know how to recognize hearsay. That way you may be able to take steps to have your evidence admitted by either having the original declarant available to testify or by knowing why your hearsay is an exception to the hearsay rule.

If you need help negotiating with your spouse with grace and with respect through litigation, we can help. To see if our services might be right for you, visit us at Open Palm Law or email me at Joryn@OpenPalmLaw.com. We are here for you, and for your family, during the stress of whatever litigation your family is going through!

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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