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He say, She say?  I say hearsay.

The rules of evidence are sometimes lost in the emotional turmoil of a Michigan divorce or custody case. However, the rules apply. The hearsay rule of evidence is one of the most important rules and is found in the Michigan Rules of Evidence (“MRE”) sections 801-806. Hearsay is a statement (an oral or written assertion or nonverbal conduct of a person), made by someone other than the person testifying that is offered in evidence to prove the truth of something.

Simply put, as a general rule, if you are trying to prove something you cannot rely on a statement made by someone else. The courts deem most conversations that are not under oath or subject to the penalty of perjury unreliable.

However, there are many exceptions to the hearsay rule.  For example, some statements are not hearsay, such as a prior statement of a witness from another hearing or an admission by the other party. These statements are deemed sufficiently reliable and trustworthy to be admitted into court.

The hearsay rule, can be found in MRE 802 and simply provides that hearsay is not admissible in court with limited exceptions.

MRE 803 provides a list of the hearsay exceptions. Certain out of court statements are determined sufficiently reliable to be admissible in a court of law.  Below is a list of the hearsay exceptions, however, recognize that a full year of law school is dedicated the rules of evidence, so be careful in applying the exceptions with consulting a qualified attorney. The hearsay exceptions are:

(1) Present sense impression; (2) Excited utterance; (3) Then existing mental, emotional, or physical condition; (4) Statements made for purposes of medical treatment or medical diagnosis in connection with treatment; (5) Recorded recollection; (6) Records of regularly conducted activity; (7) Restricts (6); (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies; (9) Records of vital statistics; (10) Absence of public record or entry; (11) Records of religious organizations; (12) Marriage, baptismal, and similar certificates; (13) Family records; (14) Records of documents affecting an interest in property; (15) Statements in documents affecting an interest in property; (16) Statements in ancient documents; (17) Market reports, commercial publications; (18) Deposition testimony of an expert; (19) Reputation concerning personal or family history; (20) Reputation concerning boundaries or general history; (21) Reputation as to character; (22) Judgment of previous conviction; (23) Judgment as to personal, family, or general history, or boundaries; and (24) Other Exceptions.

Recently, the Michigan Court of Appeals addressed the admissibility of a hearsay statement in a motion to change of custody case. The father appealed the trial court’s determination excluding as hearsay the minor child’s statements of alleged sexual abuse by her mother’s boyfriend.  In Rozmiarek v. Rozmiarek, the father testified that his 16-year old disclosed sexual abuse by her mother’s boyfriend 10 hours afterwards. The father’s lawyer argued that the 16-year old’s statement was an excited utterance and not hearsay. The trial court determined that the 16-year old’s statement was not and excited utterance and therefore hearsay. The Court of Appeals affirmed, noting that the absence on the record of any continued level of stress from the time of the abuse to the declaration.

When litigating a Michigan divorce or custody case, an understanding of the Michigan Rules of Evidence is paramount to achieving your goals. Far too often a case is lost because a client or lawyer failed to raise the right objection, allowing the consideration (or lack thereof) of important evidence. Conversely a case can be won by raising a proper objection and excluding evidence that may harm your client. He say, she say?  I say hearsay!

About Findling Law

Findling Law, PLC – 414 W. 5th St. Royal Oak, Michigan 48067

Phone:+1 (248) 399-3300
After hours emergency?+1 (707) 968-7347

Email:Daniel@Findlinglaw.com

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I have been exclusively practicing divorce and family law in Michigan for over two decades.  The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We are compassionatecreative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling

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