15 Jan 2019,

Using Hearsay Statements as Evidence Requires Preparation

Hearsay statements used as evidence in trial are always cast in a skeptical light from the beginning. Not many judges or legal professionals want to admit that something said out of the courtroom could actually be useful, or even true. But, of course, all the doubt in the world cannot disprove something that is genuinely true, and so hearsay statements must sometimes be used. Indeed, hearsay statements prepared and used correctly can change the entire outcome of a case.

Hearsay & Excited Utterance Sways a Case

In an article written for Trial Bar News (May 2007), Attorney Gordon Levinson of Levinson Law Group recalled a time when a hearsay statement was the centerpiece of his case, and yet he was still able to bring it to victory. He discussed a case in which a battered woman became an absentee victim during a domestic violence trial. It is not uncommon for victims of domestic violence to back away from trials, or even filing criminal charges against the abuser, due to fear of retaliation.

The woman was bruised by her husband while camping one night on the beach. When a park ranger checked on visitors in the morning, he noticed the bruising and asked what happened. After a brief moment of hesitation, the wife blurted that her husband, who was standing right behind her, had struck her.

This is pretty much a textbook hearsay statement, as it was both given during a fit of nervousness or excitement, and the victim would later become unavailable for the resulting trial. Furthermore, the wife’s statement was given about 13 hours after the attack, which raised even more suspicions about its integrity. With ample preparation, Attorney Levinson was able to convince the court that the excited utterance was admissible evidence pertinent to the case.

Planning Ahead for Hearsay Statements

Due to the fragility of a hearsay statement, attorneys need to anticipate potential challenges well ahead of the actual trial. A good way to cushion a hearsay statement or excited utterance from counterarguments that could undermine it is padding your case with other forms of complimentary evidence. Call upon any and all other witnesses that can argue for the validity of the hearsay statement, especially the person who was told it directly. In Levinson’s own case, the park ranger was used to testify about what he witnessed, and what the wife said and how she said it.

Within the article, he also stressed that it is important to rely on witnesses that can provide insight into the declarant’s mindset or wellbeing at the time of the hearsay statement. This might mean using a professional psychologist who has worked extensively with people who have lived through similar situations. Final considerations must be given in advance to what the opposing counsel might say to try to defeat your hearsay statement evidence. Specifically, what legal statutes or case laws can they quote, and how can you set those aside for your case? All in all, early and thorough planning is a must.