Section 4.  Hearsay Evidence and its Exceptions

 

I can still remember clearly what happened despite it being thirty some years ago. I was attending law school. The professor explained: "hearsay" started from a definition under traditional Common Law. The Common Law definition was vague and ambiguous from the beginning. Ten plus "exceptions" were added to it. Consequently the explanation of the professor also became or vague and ambiguous.  I was a student at the time and did not care about complete understanding; knowing just enough to pass the bar examination was sufficient. 

 

After I began practicing, knowing just enough could no longer be permitted. Without grasping the substance of "hearsay", one would be at a great disadvantage in court. The following explanation is based on my personal experience and not on book learning. 

 

The law of evidence in the United States is based on the belief that if a witness swears to tell the the truth in court and is subject to the cross examination by opposing counsel, his testimony then has the minimum credibility to be accepted as evidence, having already passed the two hurdles.  What this witness says is not "hearsay".  Of course, in evaluating the testimony of this particular witness, whether the jury believes or disbelieves or believes somewhat is another matter.

 

If the person is not under oath in court and subject to cross examination, he is not considered a true witness.  What he says lack reliability and is "hearsay" and not admissible at trial.

 

What is an exception to hearsay evidence? If the definition of the hearsay is strictly enforced, many useful materials become inadmissible. 

 

An example is the following exchange:

 

Prosecutor:  "Who were present when the robbery occurred?"

Witness:  "Only my father.  When I saw him he was dying."

Prosecutor:  "What did he say?"

Witness:  "He said that the person who shot him was..."

Defense counsel jumped up and yelled:  "Objection.  Hearsay!"

Prosecutor:  "Dying declaration is an exception to hearsay, Your Honor."

Judge:  "Objection overruled"

Witness:  "He said Paul was the one who shot him."

 

In the above example, the father of the witness has died and obviously cannot testify under oath and be subject to the cross examination of opposing counsel. Under the law of evidence, what he said before dying was absolutely hearsay and is generally not acceptable as evidence.  However, is Paul really going to be allowed to escape justice? Therefore, under contemporary law of evidence in California, some ten plus exceptions have been accumulated. To make an objection based on hearsay requires knowledge of these ten plus exceptions. As for what those exceptions are, it is beyond the scope of our discussion. However, if there comes a day when you are talking to a lawyer and you want to show off, and throw out a statement like "I don't think he can get through the hearsay barrier".  I think the lawyer will look at you differently.

 

Section 5.  Traffic Accident - How Evidence Law is Used

 

Previously we have talked about the traffic accident case handled by Mr. Zhang. Here we use the record of that case to demonstrate the operation of the law of evidence.

 

Zhang:  "Mr. Wang, were you involved with the traffic accident that happened on November 24,                   2004?"

Witness:  "Yes."

Zhang: "What happened at the accident?"

James:  "Objection.  Over broad.  Asking for a narrative."

Zhang:  "I am trying to save time with the preliminaries."

Judge:  "Objection sustained."

Zhang:  "All right.  Mr. Wang, when and where did the accident occurred?"

James:  "Objection. Compounded question."

Judge:  "Objection sustained."

Zhang:  "All right.  Mr. Wang, where did the accident happen?"

Witness:  "On San Jose Road in San Francisco."

Zhang:  "Were you driving at the time?"

Witness:  "Yes."

 

Both "Over broad" and "Asking the witness for a narrative" belong to objection as to form. As I have said previously, generally in American courts a witness is not allowed to answer a question with a narrative. "Compounded question" means that when Mr. Zhang asked about time and place, he should divide the question into two questions. Of course, this is only Mr. James nitpicking to disrupt Mr. Zhang.

 

Zhang: "What car were you driving?"

Witness:  "A Toyota Corolla sedan."

Zhang:  "Were there other cars involved in this accident?"

Witness: "There was a Honda civic sedan."

Zhang:  "Do you know who was driving the Honda Civic sedan?"

Witness:  "I know.  His name is Tony."

Zhang:  "Is Tony present in this court?"

Witness:  "Yes."  (pointing to defendant Tony.) 

Zhang:  "Your Honor, let the record show that the witness is pointing at defendant Tony."

Judge:  "Noted."

Zhang:  "Thank you, Your Honor.  In the accident on November 24, 2004, were there other cars                    involved?"

Witness:  "No."

 

A this point, Mr. Zhang reminded the court to record the action of the witness, that is, pointing at the defendant Tony.

 

Zhang:  "How did you find out Tony's name?"

Witness:  "After the accident, we exchanged insurance information.  At that time I learned his                        name."

Zhang:  "Was Tony wearing sun glasses?"

James:  "Objection.  Irrelevant. Lacking foundation."

Zhang:  "Your Honor.  I am trying to understand if Tony was wearing sun glasses.  If he did,

              whether his vision was impacted."

Judge:  "Objection sustained.  Counsel, you should build a foundation first."

 

"Irrelevant" basically is a substantive objection. But "lacking foundation" is merely an objection as to form. After the opponent's objections were sustained, Mr. Zhang asked a series of questions to overcome the two objections.

 

Zhang:  "Thank you Your Honor.  Mr. Wang, how was the weather on the day of the accident?"

Witness:  "It was overcast, about to rain."

Zhang:  "Did you see Tony wearing sun glasses?"

Witness:  "Yes."

 

Through his witness Mr. Zhang established the foundation that the weather was overcast but Tony was wearing sunglasses that could affect vision, so it is not irrelevant to the case.  The objection of Mr. James was overcome.

 

Zhang:  "Did you see whether Tony was injured when he came out of the car?"

Witness:  "No."

Zhang:  "Did Tony say anything to you?"

Witness:  "Yes."

Zhang:  "Did Tony apologize to you?"

James:  "Objection.  Leading question."

Judge:  "Objection sustained."

 

A leading question objection is based on the reason that "the answer is already suggested in the question". Mr. Zhang's question was clearly suggesting to the witness that Tony had apologized to him, so the objection of Mr, James was sustained.

 

Zhang:  "All right.  Let me ask again.  Did tony say anything when he got out of the car?"

Witness:  "Yes."

Zhang:  "What did he say?"

James:  "Objection.  Hearsay."

Zhang:  "That was an admission by a party, one of the exceptions to the hearsay evidence."

Judge:  "Objection overruled."

Zhang:  "Please answer my question."

Witness:  "He apologized to me.  He said he was sorry."

 

When the witness was testifying, Tony had not yet taken an oath to testify and had not been subject to cross examination, so what he said and apologized when he got out of the car were hearsay evidence. The objection of Mr. James was correct. But there are ten plus exceptions to the hearsay rule. One of them is what Mr. Zhang called "admission of a party".

 

Mr. Zhang pursued the questions about the friend of Tony, Romeo, who offered to pay money to get the incident settled. But Mr. James vigorously objected.

 

Zhang:  "When Tony was talking to you, did he have a friend with him?"

James:  "Objection. No foundation that the person with him was a friend. Assumed facts not in                   evidence."

Judge:  "Objection sustained."

Zhang:  "Okay. Let me ask again.  Was there anyone with Tony?"

Witness: "Some people came from across the street. A person got into Tony's conversation with                  me."

Zhang:  "What was the name of that person, if you know?"

Witness:  "He was called Romeo."

Zhang:  "What was Romeo's relation to Tony, if you know?"

Witness:  "I think he was a friend of Tony."

 

Mr. Zhang suddenly used the term "friend" without first laying a foundation, so Mr. James raised an objection as to form.

 

Zhang:  "Did Romeo say anything to you?"

James:  "Objection.  Hearsay."

Zhang:  "I did not ask him what Romeo said to him.  I only asked if Romeo said anything."

Judge:  "Objection overruled."

Witness:  "Yes."

Zhang:  "What did Romeo say to you?"

James:  "Objection.  Hearsay."

Zhang:  "Then I wait till I cross examine Tony and then I ask."

 

With great effort Mr. Zhang was able to get what Romeo said inserted, but Mr. James strenuously objected based on hearsay as the reason. Mr. Zhang felt that he could not overcome and decided to wait until he cross examined Tony, because in cross examination, there is more flexibility.

 

Zhang:  "Did you receive any suggestion of giving you money?"

James:  "Objection.  Timing is vague,  No foundation."

Judge:  "Objection sustained."

Zhang: "Mr. Wang, when the accident happened, did you and Tony and Romeo discuss payment               of money?"

James:  "Objection." 

Zhang:  "I only asked if there was such a discussion."

Judge:  "Objection overruled."

 

If the question is vague, it can be objected to as to form.

 

Witness:  "Yes."

Zhang:   "Did you initiate the discussion of paying you money?"

Witness:  "No."

Zhang:  "Did you receive a suggestion of receiving payment to you to settle this particular                           accident?"

James:  "Objection.  Hearsay."

Zhang:  "I did not ask what Romeo said."

Judge:  "I permit this question."

Witness:  "Yes."

Zhang:  "How much payment?"

Witness:  "Three hundred dollars."

Zhang:  "Did you receive payment?"

Witness:  "I refused."

Zhang:  "No further questions. Thank you Mr. Wang."

Judge:  "Mr. Wang, you are still under oath.  Mr. James. Your witness now."

James:  "Thank you, Your Honor."

 

Mr. Zhang overcame the objection and successfully slipped the willingness to pay three hundred dollars into the testimony. The direct testimony of Mr. Wang by Mr. Zhang concluded, then it was the turn of Mr. James to begin cross examination.