Business Law 101 / Eviction Trial Procedures-Hearsay

By Albert L. Kelley, Esq.

I have mentioned hearsay several times throughout this column and now is the time to explain it. Hearsay is defined as any statement made outside of the court that is being introduced to prove what was said.   What does that mean? Well, law schools take weeks (or months) to teach this concept, so it will be difficult to do it in 700 words. But let’s try.  Basically, any time a witness is testifying as to what someone else said or wrote, it is hearsay, if the reason they are testifying is to use the statement to prove what was being said. So if you are trying to prove that Bob didn’t pay his rent , the property manager cannot say “the landlord told me that Bob did not pay the rent.” However, the landlord can testify directly that Bob did not pay rent.

Hearsay includes police reports and repair estimates (a police report is merely the officer stating what someone told him; repair estimates, because the party is asking the Court to consider what a mechanic wrote without the mechanic there to explain it). The same is true for letters and affidavits. Many people think that affidavits are allowed because they are notarized. The notary only certifies the identity of the person signing the document; it does not certify the truth of what the affidavit says.

Hearsay is not allowed because our judicial system requires that the Court allow the opposing side to cross examine witnesses. A statement or writing made outside of the courtroom cannot be cross-examined. If the court merely accepted a police report, the opposing side would not be able to cross examine the person who described a thief to the police officer to see if she really could see the thief. If the court accepts the repair estimate, the opposing party could not ask the mechanic about his experience and where he derived the numbers from. Or using my example above, if the property manager can testify to what the landlord told him, you can’t cross examine the landlord to see if he gave Bob an extension, or took the rent in a form other than money. It is an issue of fairness and an issue of reliability.

Now, all that being said, there are twenty-four exceptions to the hearsay rule. We don’t have room to go into all of them, but some of the most common are: If the statement is not being admitted to prove the issue in the statement, it may be allowed. For example, if a witness testified that the sky was green, the court may allow the testimony not to prove the sky was green, but to prove the mental state of the person who said it. Or if the opposing side wants to introduce a business document, if they can show that it is a document that the business regularly completes and it was made during the ordinary course of business, the Court may allow it. If the statement is an excited utterance or made spontaneously at the time of an event, like “Ow! He just hit me!”, it may be allowed as there is more reliability when things are stated immediately. If the statement was made in another court proceeding, it may be allowed. It may also be allowed if it is a statement made against one’s own interest, such as “Bob told me he didn’t pay the rent.”

Hearsay is one of the most common and most misunderstood and complicated of all the objections. That’s why one of the leading books on Florida Evidence (by Charles Erhardt) devotes two hundred pages to it. So if you make a mistake or don’t understand it fully, you are probably not alone.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.