Without writing a dissertation, I will try to sum a few things up about the hearsay rule as it relates to custody, divorce and other family law cases in Virginia.
What is Hearsay?
The Supreme Court defines hearsay as “testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others.” Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). Note that hearsay is not limited to oral statements. Hearsay includes conduct, gestures, writings, and even silence in some cases. Further note that in order for a statement to constitute hearsay, two things must be present: the statement being offered needs to be (1) an out-of-court statement, and (2) offered for the truth of that statement. So, more often than not, whether a statement constitutes hearsay boils down to whether or not the statement is being offered for the truth of that statement.
Consider the following example: Child Charlie approaches Neighbor Nancy, who lives next door. Nancy notices that Charlie has a very swollen black-eye. Nancy asks Charlie “what happened?” and Charlie responds “Oh, nothing. My dad hit me.” Nancy, not knowing what to do, calls the police. Now assume that Nancy is called as a witness at a subsequent custody trial, where she testifies that “Charlie told me his father hit him, so I called the police.” The statement made by Charlie to Nancy, if offered for its truth (i.e. that Charlie’s father hit him) would be hearsay. However, the statement is not hearsay if offered to prove Nancy’s state of mind (i.e. what caused her to call the police).
However, I should note that just because the statement does not amount to hearsay if used to prove Neighbor Nancy’s state of mind, does not mean that the statement is admissible into evidence. The court will have to decide (1) whether the statement is relevant to the litigation and (2) whether the statement’s probative value outweighs any prejudicial effect.
Why is Hearsay Inadmissible?
The cornerstone of the hearsay rule is the belief that an out-of-court statement offered in court to prove the truth of the statement, should not be admissible unless the “speaker” is subject to in-court cross-examination. Because the opposing party is unable to cross-examine the out-of-court speaker, the statement cannot be trusted and should not be admissible for its truth.
How Can You Get Around the Hearsay Rule?
What happens if you have a hearsay statement that would really help your custody, divorce or other family law case? Is there a way for your attorney to “get it in” at trial? There are ways to beat the “hearsay objection” in court, and there are exceptions to the hearsay rule. Though there are too many to list here, I will explain a few that I believe to be particularly relevant to family law.
Non-Hearsay Statements. Often the simplest way to “get in” a possible hearsay statement is to argue that it isn’t hearsay at all– because it isn’t being offered to prove the truth of the statement. The best example is an out-of-court statement offered to prove some party’s state of mind at the time of some action (as in the case above of Charlie and Nancy). Such a statement is admissible to prove the declarant or someone else’s state of mind at the time the statement was uttered, not to prove the truth of the matter asserted.
Hearsay Exceptions. There are several exceptions to the hearsay rule, which might allow hearsay statements to be admitted into evidence at a custody, divorce or other family law trial.
- Business Records. This hearsay exception allows facts and events entered in the records of a business to be admitted if authenticated by someone who maintains those records, and if the records are made and kept in the ordinary course of business. Thus, out-of-court statements (because “writings” are “statements”) made in such business records may be admitted for their truth.
- Party admission. A party’s own out-of-court statement may be admitted into evidence against him or her as a “party admission” if: (a) it is a statement of the party against whom it is offered; (b) it is an adopted statement of the party against whom it is offered; (c) it is an authorized statement (i.e. the person making the statement was given authority to make the statement by the party against whom it is offered); (d) it is a statement made by an agent or servant of the person against whom it is offered; or (e) it is the statement of a conspirator in furtherance of the conspiracy. Because so much of family law litigation is “he said, she said,” party admissions are particularly common.
- Admission of evidence of sexual acts with children. Unfortunately, this hearsay exception (found in Va. Code §63.2-1522) is applicable to family law. Under this hearsay exception, in any civil proceeding involving an alleged abused or neglected child, any out-of-court statement made by the child, describing a sexual act against or with the child, is admissible for its truth if (1) the child testifies, or is found unable to testify for reasons enumerated in the statute, and (2) the child’s statement is shown to possess “particularized guarantees of trustworthiness and reliability.”
- Other hearsay exceptions. There are various other hearsay exceptions, including several that are relevant to family law cases. These include hearsay exceptions for: tax returns (Va. Code §58.1-108), records of vital statistics (Va. Code §32.1-272), genetic tests (Va. Code §20.49.3), certificates of marriage (Va. Code §20-20), medical bills (Va. Code §8.01-413.01), affidavits of non-residence (Va. Code §8.01-414), and more.
To learn more about the hearsay rule as it relates to your custody, divorce or other family law case, contact an experienced family law attorney. The custody and divorce lawyers at Livesay & Myers have extensive experience with hearsay evidence and other evidentiary issues in the courts of Northern Virginia. Contact us to schedule a consultation today.