Hearsay - what is it, and how will it affect my trial?

Some of the hardest fought battles in a trial are over matters of hearsay. One side fights to get it in, and the other fights to keep the jury from seeing or hearing it.

"Hearsay" are out of court statements offered for the truth of the matter, and are not admissible at a trial or hearing unless they fall under an exception to the hearsay rules. This means, basically, that things that people say that are not a part of the case, which are said out of court, are not admissible. 

Sometimes, the most damaging statements that people make are hearsay - for example, a co-conspirator who is overheard talking about the crime to the defendant, while committing that crime. A case can make or break over a single hearsay admission. One of the most important skills of a trial lawyer is to know how to get hearsay entered into the record, or prevent the other side from doing so.

Party admissions are a common hearsay exception found in family law cases, for when witnesses testify about what they heard the other party say out of court. These statements are often allowed in, particularly when they are about a conversation with the opposite party to the case, although they might not technically qualify as party admissions. The statement is allowed in sometimes if the statement is harmful to the party that allegedly said it.

Another reason that statements might be allowed to come in is if they are not “offered to prove the truth of the matter asserted”, but rather to simply show that the statement was made. In other words, an attorney may try to get a statement into the record not for the words in the statement, but just to show that the person was able to speak at the time.

This often occurs when impeaching a witness. A witness testifies one way at trial, but has given a prior inconsistent statement. With a proper foundation, opposing counsel may impeach the witness with that out-of-court statement. But under the rules of evidence, that previous statement is not offered for the truth of the matter asserted. Rather, it is offered to show that the witness made a totally or partially contradictory statement, and thus the witness (as would argue the cross-examiner) should not be believed.

Certified court records are another commonly used hearsay exception. For example, a certified copy, by the clerk of the court, of a prior court order or criminal conviction are frequently introduced into evidence. Certified business records that are produced pursuant to a subpoena are another frequent hearsay exception. Something that often comes into play in custody cases is that records by a children services investigator that was investigation allegations of abuse or neglect are not admissible if they are about unfounded allegations even if they are subpoenaed and otherwise properly certified. Likewise, it is not permissible to subvert this rule by calling the investigator themselves to testify about the investigation into unfounded allegations.

One important hearsay exception, in Family Court, is that children’s statements about abuse or neglect are admissible. Family Court Act 1046(a)(vi). Statements alone, however, are not enough for a finding of abuse or neglect without being corroborated - in other words, backed up by other evidence. Case law has expanded this statutory hearsay exception from the original application, abuse and neglect cases, to also apply to custody cases.  The statements may be corroborated by other evidence which has a tendency to support the reliability of the statement. Pictures and testimony about bruises are considered corroboration. Cobane v. Cobane, 57 A.D. 3d 1320, (3d Dept. 2008). Corroboration is defined broadly but must meet a threshold of reliability.