Admissibility of Evidence – Rule against Hearsay
Hearsay has been defined as evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. Hearsay includes not only an oral statement or written expression but also the non-verbal conduct of a person which is intended by him as a substitute for words in expressing the matter stated. [1]
The rule against hearsay prohibits evidence of an out of court statement that is offered for its truth where there is an objection to the introduction of the evidence unless there is an exception to the rule. If there is no exception the evidence must be excluded.[2] Documents in the court file which attest to disputed facts [3] and a forensic report by a court-appointed evaluator[4] have been held to be hearsay, but have been admitted where the expert testifies and indicates he did not rely on the hearsay.[5]
Since hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein,[6] a statement which is not offered to establish the truth of the facts asserted therein, but is offered for some other purpose, is not hearsay. [7]
[1] People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695 (1975); See also Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-101.
[2] Sadowsky v Chat Noir, 64 AD2d 697; Prince, Richardson on Evidence, 11th Edition (Farrell), §8-103.
In Matter of Brown v Simon, 123 A.D.3d 1120, 1 N.Y.S.3d 238 (2d Dept., 2014), after the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse, the parties filed petitions to modify their joint custody order. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The Appellate Division held that the Family Court erred in permitting the father to testify during the hearing that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling.
In Matter of Anthony S., 128 A.D.3d 969, 10 N.Y.S.3d 259 (2d Dept., 2015), a neglect case, at the commencement of the fact-finding hearing, the petitioner offered into evidence an Oral Transmission Report ( ORT). The attorney for the father objected to admission of the narrative portion of the ORT, and the Family Court overruled the objection. The Appellate Division held that the narrative portion of the ORT was inadmissible hearsay and did not consider it on appeal.
[3] Taking judicial notice of the court's own files is restricted to undisputed portions of the files. The judicial notice doctrine does not authorize the introduction of an affidavit that happened to be in the court's file where no evidentiary foundation had been laid for the affidavit, and it attests to disputed facts. Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice. Ptasznik v. Schultz, 247 A.D.2d 197, 679 N.Y.S.2d 665 (2d Dep't 1998).
[4] Kessler v. Kessler, 10 N.Y.2d 445, 225 N.Y.S.2d 1(1962). See also Matter of D' Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169, (2d Dept, 2005); Kahn v. Dolly, 6 AD3d 437, 774 NYS2d 365 (2d Dept.,2004) (“reliance upon professional reports without the consent of the parties is impermissible, since such reports contain inadmissible hearsay”); Chambers v Bruce, 292 AD2d 525, 740 NYS2d 76 (2d Dept.,2002) (error to admit report into evidence); Wilson v Wilson, 226 AD2d 711, 641 NYS2d 703 ( 2d Dept, 1996) (“We find it was an improvident exercise of discretion for the court to admit into evidence the report prepared by the court-appointed psychologist without the consent of the parties.... In a custody proceeding, “professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent.”
In Matter of Dakota F., 110 A.D.3d 1151, 974 N.Y.S.2d 594 (3d Dept, 2013) following a permanency hearing in a neglect proceeding, Family Court directed petitioner to arrange a parenting assessment and mental health evaluation of respondent, which was thereafter performed by psychologist Richard Liotta. In the subsequent termination proceeding, where termination of parental rights was granted, his report was received in evidence. The Appellate Division reversed and dismissed the petition. It noted that petitioner had the right to submit "psychiatric, psychological or medical evidence”, and Liotta testified that he examined respondent for the purpose of determining whether she had a mental condition that might impair her ability to care for her children. It agreed with respondent that Family Court erred in admitting Liotta's report into evidence because it contained inadmissible hearsay. Liotta testified that in the course of his examination, he conducted numerous personal interviews with caseworkers, counselors, and others. Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay "if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial" (People v. Goldstein, 6 N.Y.3d 119, 124-125 [2005]). While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not. Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations. Respondent objected on hearsay grounds to Liotta's testimony about these interviews and to the admission of his report-which contained detailed accounts of each interview-but the court overruled these objections. Moreover, when respondent's counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so. As a result, no proper foundation was laid for the admission of Liotta's testimony or his report, and it was stricken. In the absence of Liotta's testimony and report, the record did not include clear and convincing evidence that respondent suffered from a mental illness rendering her unable to care for her children, and Family Court's orders had to be reversed.
[5] In Ashmore v Ashmore, 92 A.D.3d 817, 939 N.Y.S.2d 504 (2d Dept., 2012) the Appellate Division rejected the fathers argument that the Supreme Court erred in admitting the report and testimony of the forensic evaluator because it was based, in part, on hearsay. Although the collateral witnesses did not testify at trial, the forensic evaluator testified at trial that her conclusions were based on her interviews with the parties and the children. Some of the evidence referred to by the collateral witnesses was eventually admitted at trial through other witnesses. Under these circumstances, and in light of the sharply conflicting testimony regarding the conduct of the parties, and evidence suggesting that the children were exhibiting behavioral problems, the Supreme Court properly admitted the forensic evaluator's testimony and report.
In Mohammad v Mohammad, 23 AD3d 476 [2d Dept 2005] the Appellate Division held that the Family Court properly admitted the report and testimony of the court-appointed forensic expert. The report was redacted to eliminate references to two anonymous collateral sources. The expert testified that his opinion without these sources remained unchanged and that he was able to testify at trial without considering them.
[6] Gelpi v.37th Ave. Realty Corp., 281 A.D.2d 392, 392, 721 N.Y.S.2d 380.
[7] In Quinche v Gonzalez, 94 A.D.3d 1075, 942 N.Y.S.2d 798 (2d Dept., 2012), the Appellate Division held that Supreme Court did not err in admitting into evidence at the contempt hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein.” "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay.” Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence.
Hearsay has been defined as evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. Hearsay includes not only an oral statement or written expression but also the non-verbal conduct of a person which is intended by him as a substitute for words in expressing the matter stated. [1]
The rule against hearsay prohibits evidence of an out of court statement that is offered for its truth where there is an objection to the introduction of the evidence unless there is an exception to the rule. If there is no exception the evidence must be excluded.[2] Documents in the court file which attest to disputed facts [3] and a forensic report by a court-appointed evaluator[4] have been held to be hearsay, but have been admitted where the expert testifies and indicates he did not rely on the hearsay.[5]
Since hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein,[6] a statement which is not offered to establish the truth of the facts asserted therein, but is offered for some other purpose, is not hearsay. [7]
[1] People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695 (1975); See also Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-101.
[2] Sadowsky v Chat Noir, 64 AD2d 697; Prince, Richardson on Evidence, 11th Edition (Farrell), §8-103.
In Matter of Brown v Simon, 123 A.D.3d 1120, 1 N.Y.S.3d 238 (2d Dept., 2014), after the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse, the parties filed petitions to modify their joint custody order. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The Appellate Division held that the Family Court erred in permitting the father to testify during the hearing that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling.
In Matter of Anthony S., 128 A.D.3d 969, 10 N.Y.S.3d 259 (2d Dept., 2015), a neglect case, at the commencement of the fact-finding hearing, the petitioner offered into evidence an Oral Transmission Report ( ORT). The attorney for the father objected to admission of the narrative portion of the ORT, and the Family Court overruled the objection. The Appellate Division held that the narrative portion of the ORT was inadmissible hearsay and did not consider it on appeal.
[3] Taking judicial notice of the court's own files is restricted to undisputed portions of the files. The judicial notice doctrine does not authorize the introduction of an affidavit that happened to be in the court's file where no evidentiary foundation had been laid for the affidavit, and it attests to disputed facts. Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice. Ptasznik v. Schultz, 247 A.D.2d 197, 679 N.Y.S.2d 665 (2d Dep't 1998).
[4] Kessler v. Kessler, 10 N.Y.2d 445, 225 N.Y.S.2d 1(1962). See also Matter of D' Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169, (2d Dept, 2005); Kahn v. Dolly, 6 AD3d 437, 774 NYS2d 365 (2d Dept.,2004) (“reliance upon professional reports without the consent of the parties is impermissible, since such reports contain inadmissible hearsay”); Chambers v Bruce, 292 AD2d 525, 740 NYS2d 76 (2d Dept.,2002) (error to admit report into evidence); Wilson v Wilson, 226 AD2d 711, 641 NYS2d 703 ( 2d Dept, 1996) (“We find it was an improvident exercise of discretion for the court to admit into evidence the report prepared by the court-appointed psychologist without the consent of the parties.... In a custody proceeding, “professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent.”
In Matter of Dakota F., 110 A.D.3d 1151, 974 N.Y.S.2d 594 (3d Dept, 2013) following a permanency hearing in a neglect proceeding, Family Court directed petitioner to arrange a parenting assessment and mental health evaluation of respondent, which was thereafter performed by psychologist Richard Liotta. In the subsequent termination proceeding, where termination of parental rights was granted, his report was received in evidence. The Appellate Division reversed and dismissed the petition. It noted that petitioner had the right to submit "psychiatric, psychological or medical evidence”, and Liotta testified that he examined respondent for the purpose of determining whether she had a mental condition that might impair her ability to care for her children. It agreed with respondent that Family Court erred in admitting Liotta's report into evidence because it contained inadmissible hearsay. Liotta testified that in the course of his examination, he conducted numerous personal interviews with caseworkers, counselors, and others. Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay "if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial" (People v. Goldstein, 6 N.Y.3d 119, 124-125 [2005]). While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not. Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations. Respondent objected on hearsay grounds to Liotta's testimony about these interviews and to the admission of his report-which contained detailed accounts of each interview-but the court overruled these objections. Moreover, when respondent's counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so. As a result, no proper foundation was laid for the admission of Liotta's testimony or his report, and it was stricken. In the absence of Liotta's testimony and report, the record did not include clear and convincing evidence that respondent suffered from a mental illness rendering her unable to care for her children, and Family Court's orders had to be reversed.
[5] In Ashmore v Ashmore, 92 A.D.3d 817, 939 N.Y.S.2d 504 (2d Dept., 2012) the Appellate Division rejected the fathers argument that the Supreme Court erred in admitting the report and testimony of the forensic evaluator because it was based, in part, on hearsay. Although the collateral witnesses did not testify at trial, the forensic evaluator testified at trial that her conclusions were based on her interviews with the parties and the children. Some of the evidence referred to by the collateral witnesses was eventually admitted at trial through other witnesses. Under these circumstances, and in light of the sharply conflicting testimony regarding the conduct of the parties, and evidence suggesting that the children were exhibiting behavioral problems, the Supreme Court properly admitted the forensic evaluator's testimony and report.
In Mohammad v Mohammad, 23 AD3d 476 [2d Dept 2005] the Appellate Division held that the Family Court properly admitted the report and testimony of the court-appointed forensic expert. The report was redacted to eliminate references to two anonymous collateral sources. The expert testified that his opinion without these sources remained unchanged and that he was able to testify at trial without considering them.
[6] Gelpi v.37th Ave. Realty Corp., 281 A.D.2d 392, 392, 721 N.Y.S.2d 380.
[7] In Quinche v Gonzalez, 94 A.D.3d 1075, 942 N.Y.S.2d 798 (2d Dept., 2012), the Appellate Division held that Supreme Court did not err in admitting into evidence at the contempt hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein.” "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay.” Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence.
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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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