At the Hearing

Most courts do not allow hearsay evidence, unless it qualifies for a hearsay exception, because it is considered to not be reliable evidence. However, hearsay evidence or testimony can be valuable evidence for judges or juries when deciding a case. In some situations, the only way a person can get a certain fact in front of the judge might be with evidence that is technically hearsay. Therefore, the rules that cover trials (“rules of evidence”) contain exceptions for evidence that might otherwise be considered hearsay when there is something about it that makes it more reliable than typical hearsay evidence. You can look to your state’s rules of evidence for a complete list of exceptions. The following are the most common hearsay exceptions that you might encounter:

Admission by the other party (known as “admission by a party-opponent” or “admission against interest”): Statements made by the other party that can be used against him/her will often qualify under this hearsay exception. When the other party says something out of court way before anyone knew that there would be a lawsuit, it’s considered likely that the party was telling the truth at that time. This is why it is possible that it may be admitted as an admission by the other party, even if the statement is technically hearsay. For example, if the other party once admitted to his friend, “Whenever I am watching my daughter, I lock her in her room so that I can have my friends over to party without her bothering me,” the friend could testify to this on the witness stand in your custody hearing.

This exception could also include documents that you want to introduce as evidence that might otherwise be considered hearsay, like letters, text messages, Facebook posts, etc. that were written by the other party.

Excited utterance: An excited utterance is a statement that a person makes immediately after a startling event. Statements made out of excitement are considered to be more reliable because a person is not thinking as much about what s/he is saying. The classic example is a recorded 911 call, which is made immediately after a traumatic incidence. Even if the person who made the call is not testifying, the recording of the phone call can be admitted as evidence under this exception.

Prior inconsistent statement: If a witness or a party says something while testifying that differs from a statement s/he made previously, the prior statement may be admissible under this exception. This most often occurs when there have been depositions, and a witness makes a statement during the trial that is not consistent with his/her testimony in the deposition. This is an important exception that is often used during cross-examination. If you hear a witness testify differently than what you remember him/her saying at depositions, you can question the witness about it. If s/he is not willing to admit to the prior statement that s/he made, you can read the witness’s prior statement from the deposition transcript into the court record while s/he is testifying to say, “Isn’t it true that today you said X, but in the deposition that you gave on [date], you said Y.”

Statement for purposes of medical diagnosis or treatment: A statement that you make to a doctor or another healthcare professional about symptoms you are experiencing may qualify for a hearsay exception. For example, if you are riding to the hospital in an ambulance because your leg is broken, and you tell the EMT that your partner ran over your leg with the car, the EMT could testify about what you told him/her.

Statement against interest (also called a “declaration against interest”): If a person who is not a party to the case made a statement that is against his/her legal or financial interest, then it might qualify for a hearsay exception. However, in order to use this exception, the person who made this out-of-court statement must be “unavailable” to testify at the trial for reasons such as refusing to follow a subpoena to testify, serious illness, or death.

Business record: Records that are kept by a business, government, or other organization in the regular course of business may qualify for a hearsay exception. This might be hospital records, inventory statements, rent balance sheets, utility bills, report cards, or other documents. To qualify for this exception, you might have to get certified records from the business or organization that generated the records instead of just using a copy that you have on hand or that you print out. Or, you might have to call someone from that organization as a witness to testify as to their business practices with regard to keeping records before the judge will allow you to enter the records into evidence.

Public record: Records that are kept in the public domain might also qualify for a hearsay exception. This can include birth records, marriage certificates, or sometimes, police records and other documents that are kept in an official capacity.