Hearsay

Experienced Atlanta Injury Lawyer Robert J. Fleming shares thoughts regarding how hearsay should be dealt with at trial in Georgia. What hearsay really is (and what it is not) and the true test for admissibility of hearsay at trial in Georgia are covered. The major exception to hearsay not being admissible at trial are covered as well.

  • Hearsay is generally considered inferior to live testimony because of the lack of opportunity to cross-examine the hearsay declarant. So, always respond with the following exceptions:
    • Declarant is available for cross;
    • Not offered to prove the truth of the matter asserted;
    • Want to show the effect on the hearer, not truth of the matter asserted;
    • Res gestae;
    • Party admission;
    • Witness who is in court may offer his out of court statements. Shelton v. Long, 339 S.E. 2d 788 (Ga. App. 1986)
    • Can always ask the defendant: Q. Isn't it true that . . .told you ... because (1) it's relevant; (2) the statement satisfies the hearsay rule because it's an admission, and (3) I have reason to believe the defendant took part in the conversation because of other testimony and records.

For Documents to be Admitted Against a Hearsay Exception

  1. Not being offered to prove the truth of the matter asserted, but for some relevant, non-hearsay purpose, then the document is not hearsay;
  2. Party admission;
  3. Business records exceptions (will be satisfied by the Pre-Trial Order regarding authenticity)
    1. Made in the regular course of business;
    2. Was the regular course of business to make such records
    3. Made at or near the time of occurrence
    4. Foundation: identify the record as one routinely made in the regular course of business; made at or near the time of the events, or shortly thereafter.

Non-Hearsay

  • The basic element to go from hearsay to non-hearsay is the relevance lies in the mere fact that it was said, rather than the truth of the statement asserted. Edgeword v. Edgeword, 239 S.E. 2d 16 (Ga. 1977).
  • Non-hearsay is admissible to prove:
  1. Some objective effect that the mere making of the statement would have (i.e., that the declarant's credibility is irrelevant);
  2. Effect on the hearer;
  3. Verbal acts;
  4. Explaining basis of expert's opinion;
  5. To prove declarant knew some fact Fletcher v. Fletcher, 249 S.E. 2d 530 (Ga. 1978)
  6. To reveal speaker's mental state at the time. Cohen v. Parish, 31 S.E. 2d 205 (1898);
  7. Prior inconsistent statement;
  8. Prior consistent statement.

True Test for Admissibility of Non-Hearsay - Unbeknownst to the person who heard or read the statement, the out of court statement, the declarant had no idea what he was saying. Next, ask does this assumption destroy the relevance of the statement.

If yes - It's hearsay
If no - the statement truly is relevant for its objective effect and comes in.

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