What Is Hearsay And Why Can’t I Use It In A Divorce Proceeding?

If you watched any movie or television show that has a court scene, you may have heard the objection: “hearsay”. So, what exactly is hearsay, and why can’t you use it?

Hearsay – to the lay person – a good definition would be: any type of statement, testimony or document where the person who made the statement is not there in court or the person who created the document is not there to verify that the document is true and accurate.

For attorneys, there are many legal definitions of hearsay, but, generally, it is defined as: “an out of court statement, made in court, to prove the truth of the matter asserted.”

The reason hearsay is not admissible evidence, is that it is thought to be unreliable and also because you can’t cross-exam the person who said it.

Here are two examples of why hearsay is not admissible:

Example #1:  Wife (on the witness stand): My neighbor told me that she saw my husband with another woman at a hotel and a restaurant.

This is definitely hearsay, whatever the neighbor said is definitely an “out of court statement” and it is being admitted for the “truth” of showing that the husband was with another women at a hotel and a restaurant. Without the neighbor to directly testify about her statement, the husband’s attorney could not ask her questions about what she exactly saw and when she saw it. On questioning, a good attorney may be able to reveal that the so-called “other woman” was a relative or that it was just an innocent mistake made by the neighbor. Without the ability to cross-exam the neighbor, there is no context to her statement and it can’t be challenged.

Example #2: Husband (on the witness stand):  I have my child’s report card, it shows that when my wife was taking care of him, he was absent over 50 times in one year.

The report card is hearsay. It was produced by the school and unless there is a school official there to say it is actually a true copy of the report card, there is no way to know if the report card is true or accurate. Maybe the report card is not the actual report card or it was altered. Without a school official there to state that it is a true and accurate representation of the report card, there is no way to know.

As with many legal rules, there are exceptions to the hearsay rule. Lawyers spend hours learning those exceptions in law school, so it is impossible to go over most of them. However, here is a brief summary of three of the more common exceptions:

“Statement against interest”: This is when someone makes a statement against their own interest.  For example, what if the husband tells the neighbor: “Last night I was with my girlfriend at that fancy hotel and we ate at that really expensive restaurant.” If the wife, states on the witness stand: “My neighbor told me that my husband told her that he was with his girlfriend at that fancy hotel.”  Normally, anything the neighbor said to the wife would be hearsay. But, here, because what the husband said is “against his interest”, then it most likely can be admitted as evidence. It doesn’t mean that the Judge will believe the evidence, it just means the Judge can consider the evidence.

“Matter of Record”: This is usually used when there is a document that is “official” enough to be entered into evidence, even if the person who wrote the document is not there to verify it. Almost any other court order will be admitted into evidence. Therefore, if there is another court order from a different court or different Judge, you don’t need the other court or Judge to come into court to verify that the document is true and accurate. Other official government records (tax returns) may also be admitted.

“State of Mind”: This is where you testify that because of what you heard, it made you act in a certain way.  Here is an example:

Wife (on the witness stand): My neighbor told me that she saw my husband walk out of our house five minutes before I arrived, with my friend, this is why I went to my friend’s house and started to yell at her for having an affair with my husband.

Normally, whatever the neighbor said to the wife would be hearsay. However, here it could be admitted to show why the wife was yelling at her friend. Her “state of mind” was that she was angry at what she heard, and she wants to explain why she was angry. It is important to note that although, the neighbor’s statement will come into evidence, it will not be admitted for the purpose of showing that the husband left the house with a friend. It will only be admitted to show why the wife was angry and yelling at her friend.

Like many rules of evidence, the hearsay rule dates back centuries. It has lasted the test of time and most attorneys would agree that it is a good rule.

If you are thinking of getting divorced, call Long Island divorce attorney David Badanes and the Badanes Law Office. We have the experience to help you and represent you in your divorce. You can contact the Badanes Law Office at (631) 430-4445 or email at david@dbnylaw.com. We have offices in Northport, Garden City, Brooklyn and Manhattan.

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