Most non-lawyer litigants have no idea of the definition of hearsay.  That is not unexpected.   What is unexpected is the number of attorneys and judges, whom I have come across in the practice of law,  who seem to have no idea, or an incomplete idea of the definition of this basic and essential legal term.  And these are the people who are paid to know the definition of the word.  To try or hear a case without this fundamental knowledge is insufficient at best, incompetent at worst.  

So let’s start with the definition, at least under Florida law-though since Florida uses a model evidence code, the definition is likely the same or similar throughout the country.  To paraphrase Section 90.801, Florida Statutes, “hearsay” is an oral or written assertion, and even a non-verbal communication if intended to be an assertion, by someone who is not in court, that is offered to prove that it is true.   For this reason, and for the most part, a witness— your former spouse in a divorce, for example, cannot testify at a hearing to what someone said outside of Court.  This means that a witness generally cannot testify that, “I heard X say Y.”  And because hearsay assertions can be written as well, it stops a party from saying, “Here judge, take a look at this report.”  

And that prohibition of hearsay, even includes the person actually testifying, unless that person can be cross-examined in Court AND the statement was inconsistent with a previous statement having been made under oath, OR the statement was consistent with a previous statement and is now being used to rebut a charge that the person just made the statement up or had some improper influence or motive in making the statement (There is a third non-hearsay form, someone identifying someone, but that usually does not come up in a civil context).  It is this second aspect of hearsay, which frequently judges do not remember.  

Recently, I was litigating a divorce case in St. Petersburg, Florida.  The other side offered an email from their client, which was merely a restatement of what their client claimed to have told my client, that they could not prove had been received by my client.  Essentially the email was a written statement consistent with the wife’s testimony in Court.   I was not arguing the litigant had suddenly made up what she claimed to have said; I was not arguing either influence or motive.  But still, the judge allowed the email to come into evidence, and there was an implication that it somehow strengthened the same thing she said in Court.  And it was this same judge who, a short time later in the hearing, allowed the other side to submit a handful of repair bills, over my hearsay objection.  These bills, of course, were not made by the wife, but by service providers, and were being used to corroborate that her testimony about which repairs she had made.  

While the judge’s error was not significant, and did not impact my defense, more often than not, the hearsay that gets into evidence or the hearsay that gets kept out of evidence has enormous impact. A timely spoken, “Objection, hearsay,” has stopped prejudicial and inflammatory evidence from getting heard in my cases, more times than it has not.  A good lawyer (or a good litigant) must listen carefully to all the testimony, and the moment a witness says, “He told me that…,” be quick to raise the objection, and hope that your judge is as familiar with the definition, as the lawyer/litigant is.

Coming next: The recognized exceptions to the hearsay rule.

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Copyright 2018

Attorney Hanks, P.A.

St. Petersburg, Florida