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Vail Daily column: Hearsay and its exceptions

I have been catching scraps and snippets of the George Zimmerman trial. If you are anywhere where a TV or radio is on, it is nearly impossible to miss.

The general consensus among the pundits is that Judge Debra Nelson is decisive. Yep, I’m in. But I’m concerned that she may be just a mite too fast on the draw. In my humble but hopefully educated opinion, several of the judge’s rulings on the attorneys’ various objections have simply been wrong.

While I don’t mean to second guess (OK, admittedly, maybe I do), with perhaps a little more consideration and with a little less “decisiveness,” Judge Nelson’s rulings could have comported a little bit more closely to what the law commands.

I have noted, in particular, her rulings regarding hearsay. And so, this primer in a nutshell:

Hearsay is a statement other than one made by the declarant offered into evidence to prove the truth of the matters asserted.

Whoa, hold on there! Let’s take this bit by bit. First of all, the “declarant” is the one speaking, the guy on the witness stand. The “statement” is the thing the declarant said.

What hearsay is, is when the declarant or speaker says the thing where the “thing” is something someone else said. And the declarant is repeating it to prove that the thing that was said is true.

A quick example might be helpful.

Let’s say a guy (let’s call him Smith) witnesses his neighbor (let’s call him Sheen) jimmying a lock to another neighbor’s storage shed (let’s call the innocent neighbor Jones). Later, over a beer and brat, Smith mentions to his pal, Jones, that Sheen jimmied the lock to Jones’ storage shed and hauled off the goodies that were stored there. Later, Sheen is sued by Jones for purloining the goodies. The lawyers get wind of Smiths’s remarks to Jones and determine to call Smith as a witness. Smith, however, had disappeared and so the lawyers turn to Jones instead to testify as to what Smith had seen.

Once sworn to tell the truth and nothing but, the question is put to Jones. “Did Smith see Sheen jimmy the lock to your storage shed and make the goodies his own?”

Jones dutifully answers, “Well, Smith witnessed the whole dastardly affair. And Smith said that Sheen made off with my goodies!”

“Objection! Hearsay, your Honor!”

Rather than Jones testifying that he and Smith had a conversation and what was said to him (which might be permitted if not to prove the truth of what Smith said, but, simply to relay the substance of their conversation), instead Jones is repeating the tale told by Smith to prove the truth of Sheen hot-fingering the goods. That, my friends, is hearsay.

But as TV pitchman Billy Mays was fond of saying, “But wait! There’s more!”

You see there are exceptions to the hearsay rule.

The rule exists because second-hand statements are unreliable. Put the guy who said it on the stand. But sometimes circumstances make what might otherwise be unreliable reliable and under those circumstances, hearsay evidence may be permitted.

Among the hearsay exceptions may be: present sense impressions (a statement describing or explaining an event, made while or immediately after the declarant perceived it); an excited utterance (a statement relating to a startling event, made while the declarant was under the stress of excitement that it caused); a then-existing mental, emotional or physical condition (a statement of the declarant’s then-existing state of mind — such as motive, intent or plan — or emotional, sensory, or physical condition — such as mental feeling, pain or bodily health — but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will; a statement made for medical diagnosis or treatment; a recorded recollection; records of a regularly conducted activity; public records of vital statics; family records; statements in documents that affect an interest in property; statements in ancient documents (“ancient” in this case generally meaning more than 20 years old); market reports and similar commercial publications; statements in learned treatises, periodicals or pamphlets; reputation concerning personal or family history; reputation concerning character; declarations against self-interest; and what’s known as the dead man exception (something said in the throes on one’s demise).

I have only mentioned some of them.

It is worth noting that learning this kind of stuff is known to cause law students to pull out their hair and, until it clicks, one can go around in Escher-like circles in one’s head.

What my rub is with Judge Nelson is that she seems to exclude anything that smells of hearsay, whether or not the thing said is intended to prove the truth of the assertion made. And that, I think, disserves the law. The very reason that the exceptions exist is because time has taught that not all hearsay is inherently untrustworthy.

Judge Nelson has done some good things in the odd bits and tatters of the trial I have seen. Decisiveness is good. But, by my lights anyway, in her hearsay rulings, she has erred and erred again.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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