Law

Cash & the Regulation: Rumour not admissible in courtroom — besides when it’s – Colorado Springs Gazette

One of many legal terms frequently heard in everyday speech is “hearsay.” In common usage, hearsay refers to a statement that comes from someone else. (“Yes. There’s no doubt about it. He said the Earth is flat.”)

In the law of evidence, however, hearsay has a much more precise meaning. There, hearsay is any statement other than a statement made by a witness under oath at a trial offered to prove the truth of a fact. And the basic rule is that hearsay is not admissible. The reason for this is because the speaker can’t be put on the witness stand, sworn to tell the truth and cross examined, causing hearsay evidence to be untrustworthy.

But the basic rule saying hearsay is not admissible goes on to state “except as provided by these rules.” And what follows after that is a long list of exceptions allowing hearsay to be admitted because, well, it can be useful.

It can help make the existence of a fact more or less likely, which is what the rules of evidence are all about.

So what are some of the exceptions to the rule that hearsay is not admissible? Here’s a sampling. A statement made for the purpose of medical diagnosis. (“Doc, I think my leg is broken.”) A statement made in response to a startling event. (“Wow, that bridge just collapsed!”)

Records kept by religious organizations concerning births, deaths, marriages, divorces, ancestry, etc. (“The marriage of John and Mary Smith was celebrated in our sanctuary this 5th day of October, 2008.”)

A statement that is wholly contrary to the interests of the person making the statement. (“I guess I owe him the money.”)

The idea behind these exceptions is to identify hearsay evidence that can be trusted — in other words, statements where it’s highly unlikely the speaker was making stuff up.

A case recently decided by the Colorado Court of Appeals demonstrates the hearsay rule at work in a traffic accident case, Bernache v. Brown.

The accident occurred in November 2015 when Celena Bernache and Gary Brown were both driving south on U.S. 85 near Fountain. Brown’s vehicle hit the median and then plowed into Bernache’s vehicle, causing injuries. Bernache sued Brown, claiming negligence.

Brown’s defense was that he had a sudden medical emergency over which he had no control.

A police officer investigating the accident spoke with someone who claimed to have seen Brown slump over and tilt to the right just before the collision, and this statement made it into the police officer’s report.

However, the witness disappeared before the officer could obtain a name and contact information. The witness’ statement was clearly hearsay, and Bernache’s lawyer tried to keep it out of evidence. But the trial judge allowed the entire report, including the hearsay statement, to be admitted.

The jury then found for Brown and Bernache appealed.

At issue here was a Colorado statute saying “all official records and documents of the state of Colorado shall be admissible” in this state’s courts. The trial judge read this to mean even official documents containing hearsay statements are fully admissible.

Not so, said the Court of Appeals. Unless a hearsay statement contained within an official document qualifies for one of the exceptions to the basic hearsay rule, the statement is not admissible.

After looking at several of the exceptions, the Court of Appeals decided the statement in question here didn’t qualify for any of them.

Thus, the trial judge erred in admitting the report without first removing the hearsay statement.

The result? Bernache will get another swing at the ball in the form of a new trial.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright. You can contact him at moneylaw@jtflynn.com.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright. You can contact him at moneylaw@jtflynn.com.

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