Master the Hearsay Rule or you may lose vital evidence in your custody case.

Posted June 25th, 2016.

Categories: Custody Tips, Family Law.

hearsay rule mark guralnick

The Hearsay Rule is a fundamental rule of evidence that is often misunderstood. Unless you master this rule, you may find yourself unable to get important documents or testimony admitted into evidence. If such items are not admitted into evidence, it means that the judge cannot look at them, listen to them, or consider them in deciding who gets custody or visitation rights with the children. For the next few days, we’ll be looking at the Hearsay Rule and the various exceptions to the rule.

The Hearsay Rule basically says that out-of-court statements cannot be admitted into evidence to prove the truth of the matter which they concern. For example, let’s say that you want the judge to know that the parents of your children’s friends think that you’re a perfect parent. You could not take the witness stand and testify as to what they have told you, or what they have told others about your parenting abilities. That would be an out-of-court statement which you are offering to prove that you’re a good parent — thus, hearsay. You can’t get around the hearsay rule by walking into court with a handful of notarized affidavits. A notarized statement by a neighbor who has good things to say about you is still hearsay: that is, an out-of-court statement being offered to prove the point in question. The fact that it is notarized (meaning, signed by a notary public) means only that it was witnessed, not that it’s any more true or false.

The reason the court bars hearsay from getting into evidence is because it’s deprives the other party from cross-examining the witness. If you can testify as to what somebody else said outside the courtroom, that other person cannot be cross-examined to test the truthfulness of his statement. Therefore, it is inadmissible hearsay.

There are many exceptions to the hearsay rule, and there are a number of strategies which lawyers use to circumvent the rule when they’re raising certain evidence in court. However, if you’re preparing for a custody case, you should not rely on exceptions to the rule. You should anticipate the rule, and you should try to assemble non-hearsay evidence.

For example, if you have friends who can testify as to your good parenting abilities, bring them to court. Allow them to testify in person, subject to cross-examination. Don’t bring notarized statements with you; instead, bring the parties who signed the statements, and allow them to testify as well. Besides the fact that you’ll avoid an objection based on the hearsay rule, the live testimony by your witnesses is likely to carry more weight with the court.

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