Hearsay

From Florida Legal Wiki

"Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted." Banks v. State, 790 So.2d 1094, 1097 (Fla. 2001) (citing § 90.801(1)(c), Fla. Stat. (1997)).

Hearsay is generally inadmissible for three reasons:

1. the declarant does not testify under oath;
2. the trier of fact cannot observe the declarant's demeanor; and
3. the declarant is not subject to cross-examination.

See Breedlove v. State, 413 So.2d 1, 6 (Fla.1982)(citing State v. Freber, 366 So.2d 426, 427 (Fla.1978)). However, merely because a statement is not admissible for one purpose does not mean that it is inadmissible for another. See id. Given the two-part definition of hearsay, "[t]he hearsay objection is unavailing when the inquiry is not directed to the truth of the words spoken, but, rather, to whether they were in fact spoken." "The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements." Breedlove, 413 So.2d 1.

Hearsay evidence may also be admitted, for the purpose of proving the truth of the words spoken, when it meets one of the specific exceptions to the Hearsay rule.

Contents 1 Exceptions 1.1 Business Records 1.2 Excited Utterance 1.3 Public-Records 1.4 Verbal Act

[edit] Exceptions

[edit] Business Records

Florida's business-records exception appears in section 90.803(6)(a), Florida Statutes, which provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

To secure admissibility under this exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. See, e.g., Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999).

Additionally, the proponent is required to present this information in one of three formats.

First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. See § 90.803(6)(a), Fla. Stat. (2004).

Second, the parties may stipulate to the admissibility of a document as a business record. See, e.g., Kelly v. State Farm Mut. Auto. Ins., 720 So.2d 1145, 1146 (Fla. 5th DCA 1998) (holding that the parties stipulated to the admissibility of medical records under the business-records exception); but see Gordon v. State, 787 So.2d 892, 894 (Fla. 4th DCA 2001) (holding that the State and defense counsel's stipulation regarding the defendant's release date was not sufficient to relieve the State of its burden to prove the defendant's release date by a preponderance of the evidence).

Third and finally, since July 1, 2003, the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes (2004). The certification—under penalty of perjury— must state that the record:

1. Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;
2. Was kept in the course of the regularly conducted activity; and
3. Was made as a regular practice in the course of the regularly conducted activity[.]

§ 90.902(11)(a)-(c), Fla. Stat. (2004).

"When a document is made for something other than a regular business purpose, it does not fall within the business record exception," and "[w]henever a record is made for the purpose of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized."

Yisrael v. State, 993 So.2d 952, 957 (Fla. 2008).

[edit] Excited Utterance

[edit] Public-Records

[T]o be admitted under the public records exception:

1. the source of the information must have personal knowledge of the information recorded, as the phrase "matters observed" implies,
2. the source must have had a legal duty to both observe and report the information, and
3. the record in question must be one that the public agency or office is required by law to prepare.

Yisrael, citing § 90.803(8), Florida Statutes (2004).

§ 90.803(8) provides as follows:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

Where government records are at issue, the records are often admissible both as business records and as public records; but it is generally easier to obtain admission as a public record.

[edit] Verbal Act

A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.11[3] (Joseph McLaughlin, ed. Matthew Bender 2d ed.2000); see also Charles W. Ehrhardt, Florida Evidence § 801.6 (2000 ed.).

For utterances to be admissible as verbal acts:

1. the conduct to be characterized by the words must be independently material to the issue;
2. the conduct must be equivocal;
3. the words must aid in giving legal significance to the conduct; and
4. the words must accompany the conduct.

Banks v. State, 790 So.2d 1094, 1097-98 (Fla.2001).