Objection Hearsay! What Does it Mean?

If you are representing yourself in a Minnesota divorce, custody or other family law trial, you may suddenly see an attorney jump from his or her seat and yell, with great confidence, “Objection, that’s hearsay!” The judge then decides whether the witness can or cannot answer the question. At first glance, you might believe that hearsay is simply a statement that someone else told the witness. However, this is not necessarily true.

What is Hearsay?

In general, “hearsay” is not admissible in a court of law unless otherwise provided. Therefore, it is important to understand what hearsay means. Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. In other words, a statement is hearsay when a party attempts to convince the judge that the statement is true—even though it was not made in court, on the witness stand, under oath. Conversely, a statement is not hearsay if it is offered by a party for some other reason, such as to prove that words were said (not that the words that were said are true).

For purposes of the hearsay rule, a statement does not need to be spoken words. Rather, a “statement” can be a nod, finger point, or even deliberate silence, so long as the act or gesture was intended to be an assertion. And the statement must have been made by the declarant, who may or may not be the witness testifying to the statement. For instance, a witness’s statements, made at some time other than during testimony at the trial or hearing, may actually be hearsay. So, contrary to popular belief by non-lawyers, hearsay does not need to be a statement that someone else told the witness—it can be a statement that the witness said themselves.

Hearsay Exclusions

If hearsay is generally inadmissible in court unless otherwise provided, then non-hearsay is generally admissible in court unless otherwise provided. In Minnesota, there are two categories of out-of-court statements that are not considered to be hearsay. First, prior statements made by the testifying witness may be considered non-hearsay if certain conditions are met. Second, statements made by the opposing party to the lawsuit or “party-opponent” are not considered to be hearsay. This is likely because, in these scenarios, a live witness is available to be questioned under oath regarding their prior statement.

Prior Statements by Testifying Witnesses

A testifying witness’s prior statement will not be considered to be hearsay if any of four conditions are met. First, if the prior out-of-court statement is inconsistent with the witness’s trial testimony and was given under oath at a trial, hearing, deposition, or other proceeding, it will not be considered to be hearsay. While a statement is an out of court statement if it was made outside of the current trial (a statement may be hearsay even if it occurred at a past court hearing), the fact that the previous statement was made under the penalties of perjury at a prior hearing ensures its reliability, and therefore the statement will not be considered hearsay.

Second, if the prior out-of-court statement is consistent with the witness’s testimony and helps the judge evaluate the witness’s credibility, the statement will not be considered hearsay. Importantly, the prior statement need not have been made under oath. When a witness’s in court testimony does not change and is consistent with a statement that was previously made outside of court, it is likely the judge will find the witness’s testimony to be more credible. However, if the witness’s prior statement contains assertions that have not been testified to by the witness at trial, the statement may still be considered hearsay, as it is not helpful to the judge in assessing the witness’s credibility as a witness.

Third, if the prior out-of-court statement is a statement made for the purposes of identifying someone after previously seeing them, the statement will not be considered hearsay, so long as the judge believes that the prior identification was reliable. This is because, if the original identification procedures were conducted fairly, an identification made by a person closer to the time he or she perceived the individual would be more trustworthy than an identification made during trial—which could be months or years down the road. Typically, this rule comes into play when statements are made at police lineups, which may not be at issue in family law proceedings.

Lastly, if the prior out-of-court statement was a statement describing or explaining an event or condition while the person was perceiving the event or condition (or immediately thereafter), the statement will not be considered hearsay.

Statements Made by Party Opponents

If statements made by testifying witnesses may be admitted as non-hearsay, it makes sense then that statements made by opposing parties to the lawsuit may also be admissible. Specifically, a statement will not be considered hearsay by the judge if it is offered against a party and is either:

(a)   The party’s own statement;

(b)   A statement of which the party manifested a belief in its truth;

(c)   A statement made by a person authorized by the party to make a statement concerning the subject;

(d)   A statement by the party’s employee concerning a matter within the scope of employment;

(e)   A statement made by a party’s coconspirator

Thus, a party’s own prior out-of-court statements are not hearsay so long as they are offered against him or her by the other party. Moreover, if a reasonable person in the party-opponent’s circumstances would have spoken up and objected to the assertion being made, such silence may be considered to be a statement by which the party manifested a belief in its truth, or else he or she would have spoken up. And if the other party is business (usually not arising in family law matters), any statements made by an employee of the business regarding the business or employer-employee relationship are not hearsay.

As you can see, hearsay—an often-misunderstood word—is not as simple as it may seem at first glance. And, to make matters more complex, there are twenty-seven specific exceptions to the hearsay rule—that is, if a statement would otherwise be considered hearsay, it may be considered admissible hearsay.

Exceptions when the Declarant’s Availability is Immaterial

Whether or not you can use a hearsay exception in any given situation depends on whether or not the person who made the statement is available to testify at trial. However, for a number of hearsay exceptions, it is unimportant or immaterial whether or not the witness is available. This is because, in the eyes of the law, some hearsay is considered to be so trustworthy that it should be admissible even if the person who made the statement is unavailable to testify. To follow are some commonly used hearsay exceptions where it does not matter if the declarant is available or not.

Excited Utterance

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, is admissible hearsay. The fact that a statement is made under the aura of excitement diminish the possibility that the person who made the statement will lie or fabricate regarding the statement. A judge is more likely to believe a statement is an excited utterance if the statement was made shortly after the stressful event, the nature of the event that led to the statement being made, the declarant’s physical condition, and any known motives to lie. Accidents and violent acts will typically be considered to be most startling, but whether the declarant is stressed out by the event depends on the facts and circumstances of each individual situation.

It is important to note that statements made by someone who lacks the capacity to testify—such as statements made by children, which is very common when child custody is at issue—may be admissible under the excited utterance exception.

Present State of Mind

A statement of a person’s then existing state of mind, emotion, sensation or physical condition is admissible hearsay. This exception is often used when attempting to prove someone’s intent, plan, motive, mental feeling, pain and bodily health. Spontaneous statements of this nature may be sufficiently trustworthy, which is why they are admissible under this exception. When a party to a lawsuit tries to admit a statement under this exception, the statement must be regarding the person’s current condition (“I have a headache”) rather than past condition (“I was sick last week”). Moreover, while a statement may be offered to prove the declarant’s intent, plan, or motive (“I am going out of town tomorrow”), the statement cannot be admitted to prove a fact remembered or believed (“I went out of town last Friday”).

Statements Made to Medical Professionals

A statement made for the purposes of medical diagnosis or treatment and describing medical history, past or present symptoms, pain, sensations, or the general character of their cause, is admissible hearsay. Most people do not lie to their doctor when the purpose of going to the doctor is to get evaluated for potential health issues, which is why such statements are admissible under this rule. And such statements may be made to nurses and physician’s assistants, as well, so long as they are made for the purposes of getting treated for or diagnosed with a medical issue. Importantly, while statements about the source of the injury or the inception of pain are admissible to the extent they are reasonably pertinent to the medical diagnosis or treatment (“I got punched in my right eye”), if the professional does not need to know the information to treat or diagnose a patient (“Wayne punched me in my right eye”), the statement may be inadmissible.

It is important to note that, in cases of domestic abuse of a child, the identity of the perpetrator may in fact relate to the treatment of the child victim, especially if the abuser is a family member. In such situations, the identity of the abuser may be necessary for determining the proper course of treatment.

Business Records

As stated above, while hearsay is a statement, it does not have to be a spoken statement. As one can imagine, written statements and documents are often the best proof available in certain situations. Nevertheless, these records may be considered hearsay. However, the commonly referred to business records exception is widely used to overcome this issue. Specifically, a memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses, may be admissible if the following are true:

(a)   The record was made at or near the time the act, event, condition, opinion, or diagnosis occurred;

(b)   The record was made by a person with knowledge of the act, event, condition, opinion, or diagnosis;

(c)   The record was maintained in the regular course of business; and

(d)   It was a regular practice of the business to make such a record in the first place.

Importantly, a witness must be called from the business who can testify that all of the above elements are met. This may be a secretary, recordkeeper, doctor, therapist, or anyone else with personal knowledge of the business’s recordkeeping practices. And any document prepared solely for the purposes of going to court are not admissible under this rule.

Public Records

Similar to the business records exception, a record, report, statement, or data compilation of public offices or agencies may be admissible if the public document sets forth:

(a)   The activities of the office or agency; and

(b)   Matters observed pursuant to duty imposed by law to report such matters.

This rule often comes into play when parties seek to introduce police reports in a family law or domestic abuse case. It is important to note that police reports may not be admitted into evidence against the defendant in a criminal case.

While there are twenty-two exceptions to the rule against hearsay where it is unimportant whether or not the person who made the statement is available to testify, the five exceptions discussed in this section are the most common. Yet, there are additional exceptions to the hearsay rule where the declarant’s availability must be taken into account.

Declarant Unavailable

In order to fully understand the hearsay exceptions that may only be used when a witness is unavailable, you must understand what unavailability means. A witness is considered unavailable when they assert a valid privilege, refuse to testify despite a court order, lacks memory, is dead or otherwise infirm, or the party who wants to use the hearsay has been unable to secure the declarant’s attendance. If a declarant is unavailable, the following hearsay exceptions may be used—but only if the declarant is unavailable.

Former Testimony

Former testimony in either the same proceeding (deposition) or different proceeding may qualify as being admissible hearsay if the declarant is unavailable and the party against whom the testimony is being offered (or another party with the same motive or interest) had the opportunity and incentive to develop the prior testimony through direct and cross examination. Therefore, testimony from an OFP case may be introduced in a subsequent custody case involving the same parties where the declarant now decides to assert his rights under the Fifth Amendment (is “unavailable”).

Dying Declarations

In every civil and family law case, if a declarant of a statement is now unavailable, the statement may be admitted into evidence if the statement was made at or near the time the declarant believed he or she was about to die and the statement concerned the cause or circumstances of what he or she believed to be impending death.

Statements Against Interest

If an unavailable witness has previously made a statement that is so far contrary to his interests that a reasonable person in his or her position would not have made the statement without believing it to be true, such statements may be admissible in court. Specifically, if a person makes a statement that is contrary to their pecuniary or proprietary interests, tends to subject the declarant to civil or criminal liability, or would render the declarant’s claim against another party invalid, such a statement may be admissible. Thus if someone states that they abused their partner, and later pleads the fifth when asked questions about the statement at a subsequent OFP Trial (making them “unavailable”), the statement may still be used against them, since it clearly subjects the declarant to civil—and even criminal—liability.

Conclusion

Hearsay is widely misunderstood by individuals who have not received formal legal training. Yet it is one of the most widely used objections made at a Minnesota Court or Jury Trial. And even if a statement appears to be admissible under the aforementioned rules, not all of the statement may be allowed as it may contain multiple layers of hearsay (“Bob told me that John told him that he told the doctor …”). Trials are often won or lost based upon a party’s understanding of the Minnesota Rules of Evidence—rather than the facts—as what happened in the real world is not necessarily the same as what can be proven in court.

Given the complexities with the rule against hearsay, it is important to retain an experienced family law trial lawyer if you have an upcoming custody trial or divorce trial. The attorneys at RAM Law PLLC specialize in litigation and are well-versed in the Minnesota Rules of Evidence. If trial is right around the corner, contact the attorneys at RAM Law PLLC so your case is presented with the best chance of success.