Four ways to get around the hearsay rule: They may help you win your case!

Posted June 28th, 2016.

Categories: Custody Tips, Family Law.

hearsay help mark s gurlanick

The hearsay rule holds that out-of-court statements (whether written or spoken) cannot be admitted into evidence. In other words, a mother cannot testify what her neighbor has said in the past about her ex-husband in order to prove that her ex-husband is an unfit parent. If the mother wants the court to know what the neighbor said, then the neighbor will have to be brought to court to testify in person.

That’s the hearsay rule in a nutshell. There are, however, about two dozen exceptions to the hearsay rule. Here are four exceptions that may help you admit crucial testimony or records into evidence in your child custody case:

1. Present Sense Impression
: This refers to a statement describing or explaining an event or condition made while the person actually perceives the event or condition, or immediately thereafter. For example, a non-custodial parent could take the witness stand and say that his brother drove by the custodial parent’s home and said he saw the custodial parent stumbling in a drunken manner on her front lawn as she tried to talk with the children. Even though the brother is not in court, and the statement was made out of court, it was made while the brother actually perceived the event.

2. Excited Utterance: This refers to a statement relating to a startling event or condition made while the person was under the stress of the excitement caused by the event or condition. For example, the non-custodial parent could testify that his brother drove by the custodial parent’s home and declared, “Stop that! Stop pushing those kids around!” While the statement was surely made out of court, it was uttered in an excited state in reaction to a startling observation made by the brother.

3. Then existing mental, emotional, or physical condition: This refers to a statement of the person’s then-existing state of mind, emotion, sensation, or physical condition (such as his intent, plan, motive, design, mental feeling, pain, and bodily health), but it does not include any statement of memory or belief to prove the fact remembered or believed. For example, the non-custodial parent could testify that his brother told him he was “shocked, angry and alarmed” when he saw the custodial parent misbehaving in a drunken manner on her front lawn. This out-of-court statements circumvents the hearsay rule because it refers to a statement made by the brother about his mental feeling, state of mind and emotional condition.

4. Statements for Purposes of Medical Diagnosis or Treatment. This refers to statements made for purposes of medical diagnosis or treatment and describing the medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. So, for example, the non-custodial parent could take the witness stand and testify that the custodial parent’s sister had told her physician that she had taken Prozac given to her by the custodial parent.

These four exceptions to the hearsay rule have many potential applications in Family Court. Properly used, they can assist you in admitting valuable testimony and documentary evidence that can cement your claim to custody or visitation rights.

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