Admissibility of Evidence - Exceptions to the Rule against Hearsay - Verbal or operative acts and State of Mind
Evidence of verbal or operative acts, as well as evidence of the state of mind, of a person, are not hearsay because they are not offered for their truth. When the act of a party is admitted into evidence, the declarations he made at the same time which elucidates and explain the character and quality of the act, and are so connected with it as to constitute one transaction, are admissible in evidence as an operative act. [1] The words are not hearsay because they were part of the legal act. [2] Thus, where there is a declaration of a gift with the delivery of property to a spouse, the words are not hearsay because they are part of the legal act of giving a gift. [3] Where a witness testifies to what he heard the husband and wife say while making an oral agreement the words are not considered for their truth but merely because they were said as part of the act. The words have a legally operative effect in the formation of a legal obligation.[4]
[1] People v Salko, 47 NY 230, 417 NYS2d 894.
[2] See People v Davis, 58 NY2d 1102, 462 NYS2d 816; People v Cook, 115 AD2d 240, 496 NYS2d 175, affd 68 NY2d 930, 508 NYS2d 170.
[3] Prince - Richardson on Evidence, 11th Ed. (Farrell), §§ 8-105; 8-602.
[4] See Kosinski v. Woodside Const. Corp., 77 A.D.2d 674, 429 N.Y.S.2d 783 (3d Dep't 1980).
Evidence of verbal or operative acts, as well as evidence of the state of mind, of a person, are not hearsay because they are not offered for their truth. When the act of a party is admitted into evidence, the declarations he made at the same time which elucidates and explain the character and quality of the act, and are so connected with it as to constitute one transaction, are admissible in evidence as an operative act. [1] The words are not hearsay because they were part of the legal act. [2] Thus, where there is a declaration of a gift with the delivery of property to a spouse, the words are not hearsay because they are part of the legal act of giving a gift. [3] Where a witness testifies to what he heard the husband and wife say while making an oral agreement the words are not considered for their truth but merely because they were said as part of the act. The words have a legally operative effect in the formation of a legal obligation.[4]
[1] People v Salko, 47 NY 230, 417 NYS2d 894.
[2] See People v Davis, 58 NY2d 1102, 462 NYS2d 816; People v Cook, 115 AD2d 240, 496 NYS2d 175, affd 68 NY2d 930, 508 NYS2d 170.
[3] Prince - Richardson on Evidence, 11th Ed. (Farrell), §§ 8-105; 8-602.
[4] See Kosinski v. Woodside Const. Corp., 77 A.D.2d 674, 429 N.Y.S.2d 783 (3d Dep't 1980).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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