Hearsay is an important legal concept that lawyers learn in law school. Under Federal Rule of Evidence 801, hearsay is an out-of-court statement offered for the truth of the matter asserted.
Even many lawyers are often confused by what this means when reading it. Thus, it is no surprise that the concept can seem murky for individuals going through divorce or family law matters.
In Layperson Terms, What is Hearsay in Divorce and Family Law Matters?
Witnesses often come into court to testify about what another person said in a divorce or family law matter. They could be police officers, school teachers, psychologists, psychiatrists, or other third-party witnesses.
In most instances, when a witness begins testifying about what another person said in court, a lawyer will object based on hearsay. A judge will typically sustain the objection unless there is an applicable exception. Numerous hearsay objections can complicate the situation, including present sense impressions, excited utterances, existing emotional or physical conditions, dying declarations, and others.
Instead of testifying about what somebody else said, better practice is to bring that witness into court to testify as to what they said. When a witness comes into court to testify, they can generally testify about it so long as there is a proper foundation, it does not call for an expert’s opinion, and is relevant to the current proceedings. However, whenever a witness testifies about what somebody else said, there can be hearsay dilemmas.
What Is The Solution to Hearsay in Family Court?
To avoid hearsay problems in court, the best practice is to bring relevant witnesses to testify at trial. Another option is to depose these witnesses. In many situations, the deposition transcript can be admitted at trial. However, if there were objections at the depositions, those would need to be resolved by a special master or judge.
What Are Business Records Affidavits in Divorce and Family Law Matters?
Another option for business records is to have business records affidavits attached to written documents. The records are then supplied to all counsel of record in advance of the trial by any appropriate deadlines. Examples would be school, medical, business, banking, credit card, mortgage, and other records that constitute business records.
However, many of the statements contained within the business records themselves may be beyond the scope of the ordinary course of business such that they contain opinion-based content. In such circumstances, a business records affidavit may not be enough for the records to come into evidence. For that to occur, the witnesses may need to come to court.
