Business Law 101 / HEARSAY PART 2

By Albert L. Kelley, Esq.

Our judicial system is designed to seek the truth in order to do justice. However, the truth can be elusive and requires reliable evidence and testimony. This is the purpose of the hearsay rule. To ensure that the testimony and evidence presented to the court are reliable. A statement made outside of court is not made under oath, is not made before a jury who can observe the witness and does not allow the other party to cross-examine the person making the statement. This tends to makes those out-of-court statements unreliable. Yet, certain out-of-court statements can still be presented to the court if they meet one of the hearsay exceptions.

There are over 25 exceptions to the hearsay rule. We don’t have room to go over them all, so I will only discuss a few. The theory of an exception to the hearsay rule is that either the reliability of the statement is irrelevant, or the circumstances surrounding the statement make it reliable.

When reliability is irrelevant –

  • If an out-of-court statement is not being offered to prove the facts in the statement, it is not hearsay. The reliability of the statement is not being challenged.
  • A statement made to prove a person’s state of mind, emotional or physical sensation is allowed. Here the statement itself is not being proved, it is being used to prove the speakers mental or emotional state. State of mind does not just mean competence, but also intent.

When circumstances create reliability-

  • Perhaps the most common of the hearsay exceptions is the business records rule. Documents that are kept in the regular course of business activity are generally allowed unless there is reason to doubt their authenticity. To be allowed, the record must be of a type that is relied upon by the business in the conduct of its daily affairs. If a record is made infrequently or just for the purpose of preparing for litigation, it will not be allowed.
  • Spontaneous statements and excited utterances are allowed, as a statement made while perceiving an event removes the likelihood that the speaker will consciously make a misrepresentation. This also applies to statements regarding a person’s existing physical condition or sensation.
  • Statements made for the purpose of seeking medical treatment are allowed as it is presumed that a person will be truthful when speaking to their doctor.
  • Testimony made in a prior court proceeding for the same or different matter is allowed, but only if the speaker is no longer available. These statements have reliability as the speaker could be cross-examined in the original proceeding.
  • Finally, admissions by a party opponent and statements against interest are allowed. Admissions are allowed because they are made by an adverse party who cannot complain about not being able to cross-examine himself. Statements against interest are allowed only if the person making the statement is not available. Here, the reliability of the statement comes from the fact that a person would not make a statement against their own interests unless they believe it to be true.

The final hearsay exception is a catchall. The rules allow the court to admit any hearsay statement even if it is not on the list of exceptions if it possesses the same guarantees of reliability as the listed exceptions.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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