Out of court statements offered for the truth of the matter asserted are hearsay under the evidence rules and are not admissible at a trial or hearing, unless they fall under a hearsay exception. This blog is intended to help give an understanding about the applicability of the hearsay rules that I have run into most often in my practice as a New York City area and Long Island Family Law Lawyer. As a practical matter, what this means, is that generally things that people that are not a part of the case say out of court is not admissible.
One important hearsay exception, which originally was made for abuse and neglect cases, is for children’s statements about abuse or neglect are admissible. This hearsay exception is found in Family Court Act 1046(a)(vi). The statement(s) alone are not enough for a finding of abuse or neglect without being corroborated. Case law has expanded this statutory hearsay exception to apply to custody cases. To be admissible in a custody case, however, the law requires that these children’s statements about abuse and neglect be corroborated. The statements may be corroborated by other evidence which has a tendency to support the reliability of the statement. Repetition of the statement alone would not constitute corroboration, however pictures and testimony about bruises qualifies. Cobane v. Cobane, 57 A.D. 3d 1320, (3d Dept. 2008). Corroboration is defined broadly but must meet a threshold of reliability.
Party admissions are probably one of the most common hearsay exceptions found in matrimonial and family law cases. Generally this is used when witnesses testify about what they heard or read the other party to the case say out of court. Often times, statements made by the person testifying about what they said out of court are allowed in, particularly when they are about a conversation with the opposite party to the case, although they might not technically qualify as party admissions which is the hearsay exception. Unless the statement is harmful to the party that allegedly said it, usually it would not qualify as an admission. Another reason that statements might be allowed to come in is if they are not “offered to prove the truth of the matter asserted”, but rather to simply show that the statement was made. For example, if someone testifies that she told me “it was raining yesterday” is offered to prove it was raining, then the statement is “offered for the truth of the matter asserted”. If, on the other hand, it is being used to show that the woman was able to speak, in that example it would not be “offered for the truth of the matter asserted.”
Certified court records are another commonly used hearsay exception. For example, a certified copy, by the clerk of the court, of a prior court order or criminal conviction are frequently introduced into evidence. Certified business records that are produced pursuant to a subpoena are another frequent hearsay exception. Something that often comes into play in custody cases is that records by a children services investigator that was investigation allegations of abuse or neglect are not admissible if they are about unfounded allegations even if they are subpoenaed and otherwise properly certified. Likewise, it is not permissible to subvert this rule by calling the investigator themselves to testify about the investigation into unfounded allegations.
The foregoing are the most common hearsay applications I usually use and see used in matrimonial and family law hearings, but there are others. Excited utterances (“he’s got a gun!) ; present sense impressions (“wow I am freezing”); prior inconsistent statements (things the declarant previously said that conflict with what the declarant is saying at trial); dying declarations of people now unavailable; declarations against interest (“I almost drove into the pedestrian when I looked up from my cell phone”) are among the other exceptions, however there are some others.
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