Heresay question

[marie]

Both parties are Pro Se

Lawyer in a previous hearing objected to my use of school records because a custodian was not present and the records were thrown out. At that time I knew nothing about the business records exception to the heresay rule.  

I have since recieved a letter from a previous school that states my child's dates of enrollment and absences. This letter has also been sent to child's current school.

1.  Can I use this letter in court as evidence?

2.  And if an objection is made Can I use the business records  
     exception?

3.  Would it be better to have the custodian present?

Thanks

[socrateaser]

>1.  Can I use this letter in court as evidence?

It depends. In a hearing for a temporary order, the court can ignore the presentation of hearsay evidence, and pretty much any/all evidence rule(s), except where the evidence is untrustworthy by any reasonable measure). In a hearing/trial for a final order/judgment, the court must observe the rules of evidence.

Assuming that the court must play by the rules, then the issue of whether evidence is admissible depends on why you are offering the evidence. Example:

If you are offering the letter to prove that the child did not attend school on certain dates, and the letter states that "according to the schools records, child was absent on the following dates (see attached records)," then that would satisfy the business records exception, because the statement in the letter is multiple hearsay (i.e., an out of court statement offered to prove the truth of the matter asserted), but it was made by an employee of the school who had a duty to record the attendence of the child. The attached records themselves, while also hearsay, are evidence of the legally operative fact of the child's non-attendance, and are admissible under the original document/best evidence rule.

However, if you don't have the "actual attendance records," then the letter could be ruled inadmissible because the statement assumes the factual existence of the "attendance records," which are not yet admitted into evidence.

>2.  And if an objection is made Can I use the business records exception?

It depends. See above.

>3.  Would it be better to have the custodian present?

Of course, but the custodian may not be a sufficient witness depending upon what you're attempting to prove with the letter. The custodian can authenticate the actual attendance records, but not the letter, unless the custodian had some duty to maintain the letter.

Also, if a letter offers an opinion, rather than states a fact, then the actual declarant of the opinion must be available to testify. So, if you are introducing the letter not only to prove non-attendance, but also because the school principal states that in his/her opinion, the child is not performing up to his/her capabilities, then that is an opinion, and the principal, not the custodian, must be available for cross examination, or the opinion is inadmissible, even if the attendance statement, supported by the records, is admissible.

Evidence law is really hard, and you are not going to learn it in this forum. Most of the time, when an attorney objects to a pro se litigant's offer of evidence, it's done to try to throw the pro se off his/her game. And, if the judge sustains the objection, it may be that the judge wants to send a message that the pro se is not a member of the club, and that he/she better hire a lawyer or face losing badly.

I won't say that this happened to you -- but it does happen.

If there are two attorneys, it's likely that there would have been no objection at all, except where the evidence appeared extremely unreliable or prejudicial.

[marie]

Thank-you very much for all of the info. You are a lifesaver.

Both parties are now Pro Se.  Opposing party will object to school records because previous lawyer did.  But with the help you have given me is shouldn't be a problem now to have them admitted into evidence.  

Attendance

Most of my ex's case is built on:    the child's therapist told/recommended to me.... my sister said..... my parents were under the impression........

1.  Are comments like these considered hearsay if the actual person who               made the comment is not there to be cross-examined?

Thanks

[socrateaser]

>Thank-you very much for all of the info. You are a
>lifesaver.
>
>Both parties are now Pro Se.  Opposing party will object to
>school records because previous lawyer did.  But with the help
>you have given me is shouldn't be a problem now to have them
>admitted into evidence.  
>
>Attendance
>
>Most of my ex's case is built on:    the child's therapist
>told/recommended to me.... my sister said..... my parents were
>under the impression........
>
>1.  Are comments like these considered hearsay if the actual
>person who               made the comment is not there to be
>cross-examined?

The question is why is the evidence being offered. "Heresay is an out of court statement made by someone other than the declarant while testifying as a witness and offered to prove the truth of the matter asserted."

So, if the child's therapist recommended...that the child not spend the night with the other party, and it's being offered to prove that the the therapist recommended this outcome, then that's inadmissible hearsay. But, if it's being offered to show the other parent's state of mind for refusing to permit the child to spend the night, then that's not offered for the truth of the recommendation, so it's admissible to prove that the parent had a reason for his/her actions.

The problem with this sort of thing is that once the judge hears it, he/she's affected by it, even though he/she isn't supposed to consider it.

So, you need to listen carefully, and as soon as you hear the words, "he said" or "she said," you say "objection: hearsay," because you don't want the person to get the opportunity to get something into the judge's mind.

However, if the other party says that YOU said something, that's admissible, because you're the other party, and that makes the statement an "admission," which avoids hearsay.

Also, the CHILD(REN) is/are not parties to the case, thus their statements are inadmissible hearsay, unless they are available for cross-examination.

There are a huge number of hearsay exceptions, so don't think that your objection is a magic bullet. The court may want to hear the rest of a particular statement to determine its admissibility. However, if the judge asks the other party why they are introducing a particular statement, then you can and should RESPECTFULLY object and suggest to the judge that by asking why the party is offering evidence, so as to determine its admissibility, the court is exhibiting bias by acting in the role customarily reserved for the party's attorney.  

[marie]

Understood - thank you

Hypothetical situation:

I am the petitioner and present my case using some hearsay, with no objections.

The Respondent presents their case with hearsay and I do object.

1.  Can/Will a Judge accept the respondents hearsay statement above my objection since I also included hearsay in my case?

I know a there is no way to tell for sure what a Judge will do but even your
opinion would be greatly appreciated.

thank-you

[socrateaser]

>1.  Can/Will a Judge accept the respondents hearsay statement
>above my objection since I also included hearsay in my case?

No. All evidence is admitted in the absence of an objection "timely made," which means that if no objection is made at the time the evidence is offered to the court, then it's admitted.