Rules of Evidence

Even more important are the other Rules of Evidence. Objections to hearsay are the most frequently heard objections in the courtroom. There are, of course, exceptions to the hearsay rule that will be discussed herein. Hearsay is defined as an out-of-court statement offered as the truth of the matter asserted. Clients seem to think that if someone else heard the statement, it is no longer considered hearsay. Nothing could be further from the truth.

Why is hearsay excluded from court proceedings? The basis of the hearsay rule is a party's right to cross-examination. If Wife is testifying that Husband's friend told her that Husband withdrew $15,000 from their joint checking account, how would Husband's counsel verify or cross-examine that information without the friend being in court? Husband's counsel should have the right to directly question this friend about his conversation with Wife. Furthermore, many trial lawyers believe that hearsay is inherently unreliable. As a solution to these issues, there is a general rule excluding hearsay subject to numerous exceptions, like those above, formulated to bolster trustworthiness and reliability.

Objections to Hearsay

Even an out-of-court statement made by a party is hearsay, although there is the “admission by a party” exception to the hearsay objection. Thus, if the wife testifies during the equitable distribution hearing: “My husband told me he removed $10,000 from our joint savings account two days before I filed for divorce,” that statement is actually hearsay, but it comes in under the “party admission” exception. This is a particularly important evidentiary rule, especially when a party's testimony is inconsistent with other statements. If the husband denies having taken the money or that it ever existed, the wife's statement comes in as an exception to the hearsay rule and contradicts the husband's allegation.

Business Records

Another very important exception to know is the business records exception. This exception is probably the most frequently used of the hearsay exceptions, and it is particularly common in family law. It allows business records to be admitted if the proper foundation is laid to show that the document is reliable. Once the foundation is laid, business records may be admissible for the proof that is contained therein. For the purposes of this exception, business records are any writings or records of acts, events, conditions, opinions, or diagnosis, made at or near the time by (or from information transmitted by), a person with knowledge. These records are admissible if kept in the regular course of business and it was the regular course of business to make the record. The source of information or circumstances of preparation of the records must indicate a lack of trustworthiness.

Protection from Abuse

In a Protection from Abuse case, if the wife has made a claim that her husband has been hitting her and, she claims, it was so bad this time that she visited the Emergency Room to get stitches above her eye, the hospital records of the Emergency Room, with the Keeper of the Records present, would be admissible to show that the wife had indeed appeared at the Emergency Room on the night in question. If the husband vehemently denies the wife's allegation, claiming that the wife had to receive stitches because she and her son were having a baseball catch and the ball hit her in the forehead, the husband may also want to subpoena the hospital for its records. The keeper of the records may come in to say these are the records, but this individual may not testify as to the contents without the person who filled out the report being present in the courtroom.

School Records

Another example is school records in custody cases. If the case involves school-age children, most judges will want to know how the children are doing in school. While technically hearsay, the report cards and attendance records will usually be accepted as records kept in the ordinary course of business. Other school records, e.g. , teachers' notes, and standardized tests, are definitely hearsay, and counsel will have to get them in through subpoena and testimony from the teachers themselves, who can provide the necessary foundational information required.

It is probable that even the original report card would be inadmissible because it contains the hearsay of the people filling it out (the teacher). The best way to introduce school records is through the proper custodian of records and at least one of the primary teachers who can describe the student, the manner of grading, etc. Most courts will allow the introduction of the report cards and it is rare that opposing counsel will make a hearsay objection to them.

Often, teachers will be called as witnesses to discuss the involvement of parents or lack thereof in the classroom. They may have school papers or letters from the opposition in their files that may be relevant. They are the only ones, however, who can present the evidence. In attempting to admit school records, counsel should be aware of the witness necessary to authenticate the records.

Statements in a Learned Treatise, Periodicals or Pamphlets

This is another tricky hearsay exception. You can only bring in statements contained in these treatises, periodicals or pamphlets if the person who is testifying acknowledges that it is a learned treatise; then and only then can the statements come in. For example, many custody experts rely on such volumes as the Mental Measurement Yearbook or the “MMPI, MMPI 2, MMPI-A in Court” for analysis of psychometric testing. Psychiatrists rely on the DSM 5 in order to create a diagnosis of their clients. Quoting from these “treatises” first requires an acknowledgement from the witness that these volumes are viewed in the field as respected, learned treatises.

Many business appraisers rely on anything written by Shannon Pratt in determining methods of fair value or fair market value. There are learned treatises to guide valuation experts on capitalization rates for their work. The same rules apply to these experts in their attempts to quote from these volumes to bolster their testimony.

Expert Testimony

The testimony from experts and their reliance on hearsay statements made in the course of their evaluations on which they rely for their conclusions is another area of exceptions. This article would be remiss if this was not discussed. Since Family Law sees experts in custody, accounting and business appraisals, for example, the issue of their reliance on hearsay is often raised. The Rules of Evidence permit an expert to base his or her opinion on facts or data in the case that he or she has been made aware of or personally observed. If experts in a particular field would reasonably rely on hearsay or facts gathered from hearsay informing their opinion on the subject, they come in as exceptions to the hearsay rule. They cannot be challenged based on the fact that they are out-of-court statements offered to prove the truth of the matter they assert. That is part of what the expert's do; gathering information from other sources who will not be testifying in the court room.

For example, most experts who do custody evaluations interview many potential witnesses provided by the parties before they prepare their reports. They effectively gather information from many sources, including teachers, neighbors, coaches, grandparents and even, with permission, therapists. Not only do snippets of information from these outside sources appear in their reports, but the expert testimony will include this otherwise hearsay testimony. Since facts or data upon which expert opinions are based typically stem from these possible sources, the statements made out of court will be included in the reports. In addition to their first-hand observations of these out-of-court persons, the experts will incorporate these statements in to the overall report and testimony.

Under the Rules of Evidence, an expert may rely on hearsay statements as long as the statements would foreseeably and reasonably be used by similar experts when forming an opinion. A custody evaluator, who is testifying in a custody proceeding, for instance, is permitted to testify as to statements made to him or her by those individuals. That is because other similarly situated experts would rely on those same interviews and statements when offering an opinion.

So, too, with business evaluations. In order to properly appraise a business, for example, the appraiser might interview not only the business owner, but also the business accountant, the bookkeeper, sales personnel and other rival business owners. This otherwise hearsay testimony comes in to court as information normally relied upon by business evaluators in forming their opinions of the value of a partciular business.

And finally, what if an out-of-court statement is not offered to prove the “truth of the matter asserted?” This is a tough one. If the statement is not offered to prove the truth of the matter asserted, then it is not hearsay and is not subject to any of the exceptions. For example, if an out-of-court statement is offered to prove a state of mind, notice, or the existence of some relevant fact independent of the assertion, it is not considered hearsay.

Consider this: Child Christopher, a Boy Scout, is selling popcorn. He asks Neighbor Nick if he would like to purchase any. Nick notices that Christopher has a black eye. Nick asks Charlie how he received such a bad injury. Christopher hesitates before telling Nick that his father hit him while in a drunken rage. Nick calls the police and reports the incident. A few months later, Charlie's parents are involved in a custody dispute. Christopher's mom calls Nick as a witness, where he testifies, “Christopher told me his father punched him, so I contacted the police.” This out-of-court statement made by Christopher to Nick is hearsay if offered for its truth (that Christopher's dad hit him). However, if the statement is offered to prove Nick's state of mind (what caused him to call the police), then it is not hearsay.

Conclusion

The value of knowledge about how to ask questions and when to object and on what basis cannot be overstated. Review the rules of evidence, no matter how long you've been practicing. Carry them with you to court. Family Law lawyers are litigators. They should act as such.

Lynne Z. Gold-Bikin , a member of this newsletter's Board of Editors, is a senior partner in Weber Gallagher's Family Law Practice Group, as well as Chair of the Family Law Department. Ms. Gold-Bikin has authored numerous books and articles in the field of family law. Melissa Iacobucci practices in the firm's Family Law Group, based in the Norristown, PA, office.

Family Law practitioners are civil litigators ' although our practice is certainly not what anyone might call civil. Consequently, in order to practice our profession, we need to know how to litigate. It is of great frustration for us to practice with other lawyers who do not know the simple Rules of Evidence. How can you try a case properly if you do not know what objections to make and not to make? How can you try a case if you do not know how to ask direct examination or non-leading questions?

Asking a non-leading question is very simple. Start every question with: 1) who; 2) what; 3) where; 4) when; 5) how; or 6) describe the situation. You cannot go wrong with starting every question to your own witness with one of those words, and you will not draw an objection. Why is it important? Because, if you fail to frame the question in a non-leading manner on your direct examination of a witness, a competent litigator on the other side can totally disrupt your direct examination. When an adversary makes objections, the other side will often lose track of where they are and skip the questions to which the objections are made.

Hearsay

Even more important are the other Rules of Evidence. Objections to hearsay are the most frequently heard objections in the courtroom. There are, of course, exceptions to the hearsay rule that will be discussed herein. Hearsay is defined as an out-of-court statement offered as the truth of the matter asserted. Clients seem to think that if someone else heard the statement, it is no longer considered hearsay. Nothing could be further from the truth.

Why is hearsay excluded from court proceedings? The basis of the hearsay rule is a party's right to cross-examination. If Wife is testifying that Husband's friend told her that Husband withdrew $15,000 from their joint checking account, how would Husband's counsel verify or cross-examine that information without the friend being in court? Husband's counsel should have the right to directly question this friend about his conversation with Wife. Furthermore, many trial lawyers believe that hearsay is inherently unreliable. As a solution to these issues, there is a general rule excluding hearsay subject to numerous exceptions, like those above, formulated to bolster trustworthiness and reliability.

Objections to Hearsay

Even an out-of-court statement made by a party is hearsay, although there is the “admission by a party” exception to the hearsay objection. Thus, if the wife testifies during the equitable distribution hearing: “My husband told me he removed $10,000 from our joint savings account two days before I filed for divorce,” that statement is actually hearsay, but it comes in under the “party admission” exception. This is a particularly important evidentiary rule, especially when a party's testimony is inconsistent with other statements. If the husband denies having taken the money or that it ever existed, the wife's statement comes in as an exception to the hearsay rule and contradicts the husband's allegation.

Business Records

Another very important exception to know is the business records exception. This exception is probably the most frequently used of the hearsay exceptions, and it is particularly common in family law. It allows business records to be admitted if the proper foundation is laid to show that the document is reliable. Once the foundation is laid, business records may be admissible for the proof that is contained therein. For the purposes of this exception, business records are any writings or records of acts, events, conditions, opinions, or diagnosis, made at or near the time by (or from information transmitted by), a person with knowledge. These records are admissible if kept in the regular course of business and it was the regular course of business to make the record. The source of information or circumstances of preparation of the records must indicate a lack of trustworthiness.

Protection from Abuse

In a Protection from Abuse case, if the wife has made a claim that her husband has been hitting her and, she claims, it was so bad this time that she visited the Emergency Room to get stitches above her eye, the hospital records of the Emergency Room, with the Keeper of the Records present, would be admissible to show that the wife had indeed appeared at the Emergency Room on the night in question. If the husband vehemently denies the wife's allegation, claiming that the wife had to receive stitches because she and her son were having a baseball catch and the ball hit her in the forehead, the husband may also want to subpoena the hospital for its records. The keeper of the records may come in to say these are the records, but this individual may not testify as to the contents without the person who filled out the report being present in the courtroom.

School Records

Another example is school records in custody cases. If the case involves school-age children, most judges will want to know how the children are doing in school. While technically hearsay, the report cards and attendance records will usually be accepted as records kept in the ordinary course of business. Other school records, e.g. , teachers' notes, and standardized tests, are definitely hearsay, and counsel will have to get them in through subpoena and testimony from the teachers themselves, who can provide the necessary foundational information required.

It is probable that even the original report card would be inadmissible because it contains the hearsay of the people filling it out (the teacher). The best way to introduce school records is through the proper custodian of records and at least one of the primary teachers who can describe the student, the manner of grading, etc. Most courts will allow the introduction of the report cards and it is rare that opposing counsel will make a hearsay objection to them.

Often, teachers will be called as witnesses to discuss the involvement of parents or lack thereof in the classroom. They may have school papers or letters from the opposition in their files that may be relevant. They are the only ones, however, who can present the evidence. In attempting to admit school records, counsel should be aware of the witness necessary to authenticate the records.

Statements in a Learned Treatise, Periodicals or Pamphlets

This is another tricky hearsay exception. You can only bring in statements contained in these treatises, periodicals or pamphlets if the person who is testifying acknowledges that it is a learned treatise; then and only then can the statements come in. For example, many custody experts rely on such volumes as the Mental Measurement Yearbook or the “MMPI, MMPI 2, MMPI-A in Court” for analysis of psychometric testing. Psychiatrists rely on the DSM 5 in order to create a diagnosis of their clients. Quoting from these “treatises” first requires an acknowledgement from the witness that these volumes are viewed in the field as respected, learned treatises.

Many business appraisers rely on anything written by Shannon Pratt in determining methods of fair value or fair market value. There are learned treatises to guide valuation experts on capitalization rates for their work. The same rules apply to these experts in their attempts to quote from these volumes to bolster their testimony.

Expert Testimony

The testimony from experts and their reliance on hearsay statements made in the course of their evaluations on which they rely for their conclusions is another area of exceptions. This article would be remiss if this was not discussed. Since Family Law sees experts in custody, accounting and business appraisals, for example, the issue of their reliance on hearsay is often raised. The Rules of Evidence permit an expert to base his or her opinion on facts or data in the case that he or she has been made aware of or personally observed. If experts in a particular field would reasonably rely on hearsay or facts gathered from hearsay informing their opinion on the subject, they come in as exceptions to the hearsay rule. They cannot be challenged based on the fact that they are out-of-court statements offered to prove the truth of the matter they assert. That is part of what the expert's do; gathering information from other sources who will not be testifying in the court room.

For example, most experts who do custody evaluations interview many potential witnesses provided by the parties before they prepare their reports. They effectively gather information from many sources, including teachers, neighbors, coaches, grandparents and even, with permission, therapists. Not only do snippets of information from these outside sources appear in their reports, but the expert testimony will include this otherwise hearsay testimony. Since facts or data upon which expert opinions are based typically stem from these possible sources, the statements made out of court will be included in the reports. In addition to their first-hand observations of these out-of-court persons, the experts will incorporate these statements in to the overall report and testimony.

Under the Rules of Evidence, an expert may rely on hearsay statements as long as the statements would foreseeably and reasonably be used by similar experts when forming an opinion. A custody evaluator, who is testifying in a custody proceeding, for instance, is permitted to testify as to statements made to him or her by those individuals. That is because other similarly situated experts would rely on those same interviews and statements when offering an opinion.

So, too, with business evaluations. In order to properly appraise a business, for example, the appraiser might interview not only the business owner, but also the business accountant, the bookkeeper, sales personnel and other rival business owners. This otherwise hearsay testimony comes in to court as information normally relied upon by business evaluators in forming their opinions of the value of a partciular business.

And finally, what if an out-of-court statement is not offered to prove the “truth of the matter asserted?” This is a tough one. If the statement is not offered to prove the truth of the matter asserted, then it is not hearsay and is not subject to any of the exceptions. For example, if an out-of-court statement is offered to prove a state of mind, notice, or the existence of some relevant fact independent of the assertion, it is not considered hearsay.

Consider this: Child Christopher, a Boy Scout, is selling popcorn. He asks Neighbor Nick if he would like to purchase any. Nick notices that Christopher has a black eye. Nick asks Charlie how he received such a bad injury. Christopher hesitates before telling Nick that his father hit him while in a drunken rage. Nick calls the police and reports the incident. A few months later, Charlie's parents are involved in a custody dispute. Christopher's mom calls Nick as a witness, where he testifies, “Christopher told me his father punched him, so I contacted the police.” This out-of-court statement made by Christopher to Nick is hearsay if offered for its truth (that Christopher's dad hit him). However, if the statement is offered to prove Nick's state of mind (what caused him to call the police), then it is not hearsay.

Conclusion

The value of knowledge about how to ask questions and when to object and on what basis cannot be overstated. Review the rules of evidence, no matter how long you've been practicing. Carry them with you to court. Family Law lawyers are litigators. They should act as such.

Lynne Z. Gold-Bikin , a member of this newsletter's Board of Editors, is a senior partner in Weber Gallagher's Family Law Practice Group, as well as Chair of the Family Law Department. Ms. Gold-Bikin has authored numerous books and articles in the field of family law. Melissa Iacobucci practices in the firm's Family Law Group, based in the Norristown, PA, office.