How to Handle Hearsay at Your Small Claims Trial - dummies

How to Handle Hearsay at Your Small Claims Trial

By Judge Philip Straniere

Hearsay is a term you may hear repeatedly at your small claims trial. Knowing what to do when this term is brought to bear may help you win your case.

What is hearsay?

The hearsay rule developed to keep certain types of evidence out of the court record because they were thought to be unreliable. Hearsay is defined as an out of court statement, either written or oral, offered in court by a witness and not the person who made the statement to prove the truth of the matter being made in the statement.

Breaking the hearsay rule down to its parts makes it easier to understand. The hearsay rule is:

  • An out of court statement: The statement was not made in court, on the record, during the trial.

  • Either written or oral: The statement may be something someone said, wrote down, or did.

  • Offered in court: A party to the lawsuit is trying to get the statement into evidence.

  • By a witness and not the person who made the statement: Someone other than the person who made the statement, produced the document, or did the action is testifying as to the contents of the statement.

  • To prove the truth of the matter being made in the statement: The statement is being offered to the court as containing information that’s true and accurate.

What makes hearsay inadmissible is that the person who originally made it is not in court repeating it and is not subject to cross-examination. In other words, no one can question the person who originally made the statement as to its truth, reliability, or accuracy.

A document people commonly try to use at a trial is a police accident report. But guess what, the police report is hearsay. Suppose the police report is prepared by an officer who arrives at the scene an hour after the accident.

The police officer finds a witness who says that a passenger in the defendant’s car got out of the car after the accident and says “I told Demolition Dora, the driver of the car, not to speed up and run the red light, but she never listens, especially when she has been drinking and talking on her cellphone.”

The officer, who did not see the accident, interviews the witness and puts that statement in the police report. You, the plaintiff, want the police report to be put into evidence as proof that the defendant, Demolition Dora, ran the red light. Neither the passenger who made the statement, the witness who heard it, or the police officer is in court to testify.

This is classic hearsay that consists of:

  • An out of court statement: What the passenger said.

  • Either written or oral: The original statement was oral. The fact that the police report is in writing does not make the statement written. It would be written if the passenger had given a written statement to someone.

  • Offered in court: You’re trying to have the written police report put into evidence.

  • By a witness and not the person who made the statement: Not only is the passenger who made the statement not present, neither is the witness who heard it, nor the police officer who recorded it.

  • To prove the truth of the matter being made in the statement: You want the statement to be used as proof that the defendant ran the red light and maybe even that she was speeding, drunk, and on her cellphone.

Exceptions to the hearsay rule

The hearsay rule has so many exceptions that a great deal of hearsay evidence is permitted at small claims court trials.

The first exception is an admission, which is a statement by the defendant admitting responsibility for some fact important to the case.

For example, you loaned your spouse’s deadbeat brother $2,000 just because he asked. You put nothing in writing. Although he promised to pay you back, he hasn’t.

After a year, he sends you a cocktail-stained postcard from a resort in Tahiti, saying that he knows that he owes you the money but he just doesn’t have it at the moment.

If you sue him, you can use the letter as an admission that he owes the debt. It’s an exception to the hearsay rule because people generally don’t lie about facts that create some liability.

A second exception is referred to as a prior inconsistent statement. The witness is present at trial and now is asserting different facts than given at prior time.

A third, very common exception involves business records. The records a business keeps in the regular course of its business can be used in evidence. Business records are considered reliable because the business needs accurate records to supply and bill its customers.

Many states now permit medical records to be certified by the hospital and used as evidence at a trial without bringing in a person from medical records or billing to testify.

Other exceptions to the hearsay rule are:

  • Dying declaration: A favorite in movies, this is when the dying evildoer confesses to the crime so the wrongfully accused can be released from jail.

  • Excited utterance: A statement made by someone without any time to think about what she’s saying such as, “Oh my gosh, that guy just ran the red light!”

  • Declaration against interest: Similar to the admission exception that applies to all facts but limited to acknowledging a criminal act or monetary obligation.

To further confuse the issue, another hearsay exception can be made if the hearsay statement isn’t being offered to prove the truth of its content but to show the state of mind of the person who made the statement.