Family Law Unraveled

The latest from Margaret's blog

Hearsay Blues

Friday, February 26, 2010

Suppose your four year old tells you something very bad about their other parent. Suppose you completely believe what your child has told you. Suppose your child will not repeat what he told you to anyone else. Can you tell a judge what your child said? In general, no. Hearsay – meaning a statement made out of court by a person not a party to the litigation – generally cannot be admitted as evidence. So if I ask my client “what did your daughter tell you?” opposing counsel will respond, properly, “objection – calls for hearsay” and the judge will very likely sustain the objection. Meaning that my client will not be able to answer my question and the judge will never hear about the terrible things her child confided in her.

The policy behind the hearsay rule makes sense. Think about it from the other perspective. Suppose you’re a dad whose child supposedly (allegedly, in lawyer language) told his mother that you did something very bad to him. You know that you never did any such thing and your ex is just out to get you. If the mother is allowed to testify in court what your son said to her – but to no one else, including the judge – how could the judge possibly rely on that to rule that you abused your child? That would be so unfair.

But wait – go back to the first scenario. Your child is very young and he couldn’t possibly have made up what he told you, but he won’t tell anyone else because he’s shy and doesn’t talk to strangers, including the judge. And there’s no other evidence that the abuse occurred – no one else saw it, there is no medical evidence. Under these circumstances, the judge will likely be compelled to conclude that nothing happened and your child will go right back into a situation you are convinced is dangerous for him, i.e, back to an abusive parent.

I’ve been involved in these types of cases a lot recently. When I was a law student studying the rules of evidence a zillion years ago, I had no clue about the real life repercussions of the hearsay rule. They’re huge.

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