Saturday, February 02, 2002

hear ye hearsay? we hear hearsay

One of the most confusing set of rules of evidence are the ones that deal with hearsay. The concept of hearsay is a little difficult to explain (and understand), and it has more exceptions than swiss cheese has holes. And, sometimes there are certain types of hearings where the rules of evidence aren't always applied, or are applied in a way that makes you tilt your legal head.

Hearsay is "an out of court statement used to prove the truth of the matter asserted." What that means is that the courts want to use the best evidence available to them that they can - the evidence that is the most reliable. So when you have someone saying something, or making a statement by their words or gestures, you should have that person on the stand testifying as to what they said or meant. Having someone else on the stand testifying to the other person's statement is much less reliable, because you can't ask that someone else the motivations behind the statement, or cross examine them very effectively.

Hearsay doesn't even need to be words. It can be the act of another person. So, for instance, if I wanted to prove that it was raining on a certain day, and I brought someone in to testify that it was raining because they were looking out a window and saw someone opening an umbrella, that act of opening an umbrella would be hearsay. If the person testified that they saw raindrops, that would be direct testimony, and would bring very little possibility of objection.. But the umbrella testimony could be objected to under the hearsay rule.

Keep in mind that everytime an objection is made to a statement involving hearsay, there is the possibility to overcome that objection by referring to one of the exceptions. The exceptions are important because they can limit the way the "out of court statement" is interpreted by the judge or jury.

Hearsay can also be a written statement. You want the author in court to testify about what is written, if possible. Not having the author there means that you might have difficulties using the document to prove what is said within it. You might be able to use it to prove something else, such as what the state of mind its author was in at the time of writing. The rule of hearsay can be frustrating, and limiting, but it is valuable because its use produces good results. The idea is that such hearsay is inherently unreliable, and that allowing the testimony would violate our constitutional right to hear and question witnesses brought against us.

There are many exceptions to that rule. Most of the exceptions reflect circumstances where we might tend to give more weight to the words, such as the last few words of a dying person (if he knew he was dying), or a spontaneous excited utterance, or papers kept as normal business records.

In Delaware Civil Commitment Hearings, a doctor can testify that the social worker told her that the social worker heard a neighbor say another neighbor said that you were walking around naked in your back yard.

And this will be heard officially by the Court with only the doctor's testimony and nobody else available to ask about what happened. We aren't usually given a practical opportunity to question either the social worker nor the neighbors because the first time we hear about some of this is in the middle of a hearing. And these hearings usually only have one witness, the State Hospital's witness, a psychiatrist.

This is the only type of hearing that I am aware of that hearsay is so freely admitted, and makes up such a high percentage of the overall case. I recall my first hearing of this nature, almost 10 years ago now, where I jumped up to object to what I thought was inadmissible hearsay. It was that day that I learned that these types of Court hearings are mostly hearsay and opinion.

Since then, I have worked on thousands of mental commitment cases. There are a small number of attorneys and judicial officers who work on these matters. Once in a while an attorney who is not familiar with the process will appear for a hearing, usually as a favor to the client or a family member. I see the same bewildered expression on their faces that mine must have displayed years ago...thinking "this can't be right".

We conduct hearings that are not open to the public, not publicized, and rarely appealed. I think that everyone in the process does have the best interests of the mental patients at heart, but I also am continually reminded as to the vastly different manner in which these hearings are conducted as compared to "normal" cases.

This application of hearsay rules in civil commitment hearings serves the interests of the State by shortening the hearings and moving the calendar along more efficiently. And those are legitimate things.

But it does so at the cost of the rights of our citizens. These are our silent citizens though. They usually don't vote and nobody pays them any mind. We don't really want to know about the mentally ill. We just want them put away out of sight.