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Jonathan Rosenfeld

December 12, 2021

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Many people who have spent time watching their favorite courtroom television drama are very familiar with the word hearsay.

They can picture their favorite television lawyer objecting on the basis of hearsay.

However, very few people know what the actual hearsay rule means and how it affects personal injury cases. At Rosenfeld Injury Lawyers, we do not play lawyers on television.

We are experienced attorneys in real life and we know exactly what evidence that we need to prove your personal injury lawsuit.

Call our office for a free consultation to learn more about your personal injury case. Here is what you need to understand about hearsay evidence and how it can affect your particular case.

How the hearsay rule can impact a personal injury lawsuit

The hearsay rule can have an impact on personal injury cases as it may limit the testimony admissiable in court.

What Is Hearsay Evidence?

The usual way of introducing evidence into court is presenting it to the jury and questioning someone about it in a narrative fashion.

Then, the opposing counsel gets their turn to cross-examine the witness to try to disprove the witness or minimize the credibility of their testimony.

This is the rule in both civil and criminal cases. In a criminal case, it is a matter of the defendant’s constitutional right to confront the witnesses testifying against them.

With hearsay, a witness or some other type of evidence is relating something that someone else saw or said without hearing from that person themselves.

In other words, it is an out of court statement that someone is trying to bring into court without the opportunity to test and probe the person who made it.

This would put the other party at a disadvantage if they are not able to cross examine or try to dispute what was in that testimony or document.

Here are Some Examples of Hearsay Evidence in a Personal Injury Case:

  • Someone happens upon the scene of a car accident, and someone else who saw the crash says that a car ran a stop sign and t-boned the other vehicle. Only the person who came to the scene afterward is called to testify in court instead of the person who saw the crash and made the hearsay statement.
  • The plaintiff is trying to introduce the evidence on a certain record into court without the ability to question the person who made the record.
  • You slip and fall, and the maintenance logs show that the defendant did not inspect the property for hours or days before your injury.
  • In a negligent security case, an attack victim remarks about how dark the premises are shortly before they are murdered.

The Rules on Hearsay Evidence

The Federal Rules of Evidence (FRE) define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

It would basically be the same thing as saying that something is true because someone else said it is when that other person is not being called as a witness at trial.

Let us look a little more closely at each of the required elements for something to be considered hearsay evidence:

  • A statement – While many statements are verbal or spoken, hearsay evidence is not just limited to these. Statements can also be made in writing in the form of a record or a memo.
  • Out of court – This means that the statement itself was not just created in the courtroom, it was first spoken out of court (or the record was created outside of the courtroom)
  • Admitted – This means that one party to the trial is attempting to have the statement admitted into evidence. This happens either when a witness speaks it or a record is used at trial.
  • For the truth of the matter asserted – The hearsay statement is used to prove its own truth. In other words, there are facts contained within hearsay evidence, and the statement is used to prove those facts. In other words, it would be something along the lines of trying to prove it is cold by saying that someone else said that it was cold.

The basic rule is that hearsay evidence is inadmissible, unless there is a specific exception that allows it.

State courts use the same rules as the federal courts, meaning that you will need first hand knowledge to prove your civil case in court.

Personal knowledge is what is used to evidence your claims and carry your burden of proof.

In every personal injury case, you are trying to prove that someone did or did not do something that caused your injuries.

In the end, you must show that someone acted unreasonably under the circumstances in a manner that caused your injuries. Along the way, there are a number of facts that you must prove to win in personal injury cases.

Each of those facts must be backed up by evidence that could include:

  • Testifying witnesses (including people who saw what happened and experts)
  • Photographic and video evidence
  • Written documentation (such as earnings information and medical records)

In other words, there is physical and non-physical evidence that is trying to prove the matter asserted. These types of evidence must be direct enough where they can be questioned.

The more “indirect” the evidence, the greater the likelihood that it is hearsay.

What Is the Purpose of the Hearsay Rule?

You are certainly familiar with the figure of speech or people wanting to hear it straight from the horse’s mouth. In a nutshell, that is exactly what the hearsay rule is.

The law accounts for the fact that things get lost in translation when there is the proverbial game of telephone.

When things are removed from the direct source of the testimony, they tend to get distorted.

In addition, your legal right is to be able to question someone about testimony. The court needs hear directly from the person themselves.

In particular, the other attorney needs to be able to cross examine them about their statements. They cannot do this with out of court statements that a witness is relaying in the presence of the court.

With hearsay evidence, you do not get that chance. The statement would essentially be introduced into court as a fait accompli without any chance to learn more about it. That is inherently unfair to the other party against whom the evidence is being used.

The defendant needs to chance to probe the evidence themselves in court, so the judge and jury can make their own impression of the credibility and whether the evidence is useful.

Even though hearsay rules only apply in state and federal courts, the same principles are used elsewhere.

For instance, when you have made an insurance claim, you can expect that the insurance company may try to discount facts that do not come directly from the source, even if they do not say that they are applying the hearsay rule.

Hearsay Exceptions

While this rule seems harsh on the surface, it is not an absolute bar to anything that may be considered hearsay. You can rely on a relevant hearsay exception to get some types of evidence into your court case. In fact, there are many exceptions to this rule.

One example of a hearsay exception is the excited utterance rule. This is something that a statement that the defendant made right after the event when they were still under the stress of the event.

For example, in a car crash, a witness could blurt out that they saw a car run a red light and hit someone else. This type of statement would be considered more trustworthy because it was made in the heat of the moment.

An excited utterance is made in response to a startling event. This exception could be a valuable way to admit statements about how the declarant perceived what happened.

For example, the defendant in your case may have made a statement at the scene of the accident while still under the stress of the situation that could indicate that they were to blame for what happened.

They could have said “I did not mean to hit that car.” However, an excited utterance could also be used against you as the plaintiff, as it is a double-edged sword.

The Present Sense Impression Rule

One of the other exceptions to the hearsay rule is a present sense impression. This is a statement that was made while the person declaring it was perceiving it in real-time.

This is considered to be more reliable than “ordinary” hearsay because present sense impressions convey what the person was seeing as something was unfolding. It is their then existing mental impressions of what they are seeing.

Present sense impressions are not necessarily inadmissible on their own. If so, there would be a danger that the evidence could be made up after the fact.

Instead, there must also be some sort of evidence that backs up the present sense impression.

At a minimum, there must be:

  • Independent evidence that supports the contents of present sense impressions
  • Independent evidence that supports that the statement was made contemporaneously with the event or immediately thereafter

What is considered “present” depends on the circumstances. There is no hard and fast time limit on when these hearsay statements would be considered admissible. It is all decided on a case-by-case basis.

However, there is little doubt that a statement made hours or days after the event would not be considered a present sense impression.

In a car accident context, a statement that “that car is going really fast,” could be considered a present sense impression.

Present sense impressions could be very important in premises liability cases, where perception of danger and the actions of the victim are at issue.

The Use of Business Records in a Personal Injury Case

One of the common ways that a personal injury lawyer will tell you can prove a slip and fall claim is through the use of maintenance logs that shows when a property was inspected and what was done to fix a condition.

This is used to show that a property owner knew or should have known about a dangerous condition, and it was unreasonable for them not to fix it in time.

Based on everything that we have said above about hearsay, you are probably now thinking that these would be considered hearsay. That is a valid thought, but there is a hearsay exception that could make these records admissible.

There is a business records exception to the hearsay rule that allows certain records to be admitted into your case.

The scope of the rule is as follows:

  • The record must be made at or near the time of the event (again, this is determined on a case-by-case basis)
  • The record must have been made in the ordinary course of business (things like maintenance logs are usually in the ordinary course of business)
  • The record must have been made by a person with knowledge
  • The source of the information and the manner of preparation must not have been untrustworthy
  • The attorney must lay a foundation for the records through testimony of the custodian or other qualified witness

This is why we always say that you need an attorney right after our accident, so that you can get the records that you need to prove your case.

For example, if you were hurt in a truck accident, the trucking company likely has maintenance logs for the trucks that could fall under the business records rule.

You would need to move quickly to direct the trucking company to preserve these records in anticipation of possible litigation.

The Use of Medical Records in Personal Injury Cases

Defendants often try to have records of medical diagnoses excluded from use at trial as hearsay. However, records of a medical diagnosis would most often be admissible in your personal injury case.

There us a hearsay exception for statements that are made for purposes of medical treatment.

In addition, hospital and medical records fall under the business records exception described above, since they are made in the normal course of business by doctors.

Of course, it helps to have a doctor testify about your physical condition in your case, but the records would be admissible even if they do not, provided that they are first authenticated.

The Dying Declaration of the Victim

In a personal injury case, it is simply not possible to hear from the victim, since they are no longer around to tell their story.

However, they may have said something at the scene of the accident before they died that could bear on the defendant’s liability.

This statement must have been made under the belief of impending or imminent death. These statements are particularly helpful in criminal cases, where the victim may identify their attacker.

They are also allowed into court as one of the hearsay exceptions in civil cases.

How a Hearsay Objection Is Made

An experienced attorney is closely following all of the questioning in your court case.

They will need to be very quick to object to what they think is hearsay when a witness makes a statement or opposing counsel tried to admit evidence.

Otherwise, the statement will be admissible and you will lose your chance to challenge it. They will need to point this out practically as soon as the statement leaves the witness’ mouth.

This is why you should have a personal injury lawyer with extensive experience in the courtroom. A knowledgable attorney would be well-trained to object immediately and challenge the hearsay statement.

An attorney can also object to physical evidence that one party is trying to introduce into the case. This could be done through a motion in limine. the judge will decide whether or not the evidence is admissible.

This is done for certain records that one is trying to introduce instead of the actual testimony.

In many cases, the success of your case comes down to whether the judge allows you to use certain records, and the hearing about this evidence is a make or break moment for you.

Police Reports and Hearsay

You may use a police report when you have made a claim to the insurance company, since the rules of hearsay do not apply during the claims process.

They only apply in court. However, the police report is an example of hearsay that would be inadmissible.

The police officer is no different from anyone else in that they need to be questioned in the presence of a judge or jury.

Of course, as the plaintiff, you would want to call the police officer to testify as opposed to just trying to use the accident report.

The officer usually has credibility, and they are more effective when they testify about what they saw. Their words better describe the circumstances than a brief report.

Then, the officer is able to give their observations. You can use a police report when you have filed a claim with the insurance company.

How Experienced Attorneys Help in a Personal Injury Case

If you are trying to handle your personal injury claim on your own, chances are that you have no idea of the nuances of hearsay rules.

You are not able to separate inadmissible evidence from that which can help prove your case. However, an attorney knows when you need firsthand evidence and how to obtain it.

If there is a key fact in your case that needs to be proven, your attorney will either search for witnesses or other proof of that fact, or they will look for a hearsay exception.

If your case goes to court, your attorney would work to secure admissible evidence that they can present to the judge and jury. If hearsay is your only evidence, you would have some trouble proving your own case in court.

You must be very careful about the type of evidence that you compile for your case. Your attorney may very well need to use some sort of hearsay evidence to help prove your case.

Not every plaintiff is able to compile the direct evidence necessary for their case without relying on hearsay.

Sometimes, they may need to use hearsay for validation purposes, even if they are not trying to prove the truth of the matter asserted.

An experienced attorney knows when and how to use hearsay in personal injury cases when it is necessary.

However, when you are relying on some type of hearsay statement, the person who originally spoke that statement can come under attack in court, even if they are not testifying.

When a witness is relaying what a third person said, the credibility of that third person can be challenged and questioned.

There is always a risk to relying on one of the exceptions to the hearsay rule, but it is sometimes necessary.

Hearsay evidence can also harm personal injury cases. Just as you are searching for any possible evidence to prove your case, the defendant may try to use hearsay against you.

One exception to the hearsay rules that can hurt you is when you make a statement against your own interest.

For example, if someone heard you say that you ran a red light of stop sign before your car accident, this is a statement that would undercut whatever claim that you made.

This could be used as evidence against you in court. Left unchanged or unchallenged, it could damage your case.

Hearsay makes personal injury cases far more complicated, and it is yet another reason why you absolutely need an attorney. Call our law office to schedule your free consultation.

Contact a Personal Injury Attorney for a Free Consultation

If you have been injured in an accident, you may be entitled to significant financial compensation. The responsible party must pay in full for your injuries.

The attorneys at Rosenfeld Injury Lawyers will help you with your claim and take your case to trial is necessary.

Call us today at (888) 424-5757 or contact us online to schedule your free consultation. We have a long track record of helping clients achieve results in civil cases after we form an attorney client relationship.

Call our law office today for legal advice. We are experienced attorneys who mean business for our clients, and we will do everything possible to fight for the compensation that you deserve.

Free Consultation (888) 424-5757
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