Anybody who’s watched any law-based TV shows has heard the term “hearsay”.  Hearsay evidence is pretty common in civil trials, and it makes me crazy.  Not the actual evidence itself, it’s that many lawyers and even some judges don’t understand what hearsay evidence is and how it should be handled.  It’s turning into a pet peeve for me.


Hearsay in court

I have an example from a case I had a few years ago.  It was a battle over custody of a minor child and I was trying to show that a family member was being difficult when it came to the exchange of the child.  My client, the child’s mother, was delivering the child to the home of the father’s mother (the child’s grandmother).  My client was testifying that as she approached the door, the grandmother threw the door open and said “Get away from my door, you witch!”  (Except she used a different word that rhymed with “witch”.)

Opposing counsel jumped up, “Objection!  Hearsay!  She can’t testify to something that was said out of court!”  The judge agreed and despite my arguments, my client was not allowed to present that testimony.  The objection was wrong, and the judge was wrong.  However, this scenario happens all the time because so few people really understand the rules regarding hearsay.


How hearsay really works

“Hearsay” is defined as:

  • A statement that is made outside of the court, and
  • is being admitted to prove the matter asserted in the statement.


If the statement being presented to the court meets both of these elements, then it cannot be used as evidence unless it falls within one of the numerous exceptions.  An examination of all the exceptions is far beyond the scope of this post, so I’m keeping it simple.

A somewhat recent case I found gave the Tennessee Court of Appeals an opportunity to clarify the issue.  In Whitten v. Whitten, the Court had to address a very contentious modification of a parenting plan.  The relationship between the mother and father was so bad the Court described it as follows:

The relationship between Mother and Father following their divorce has been far from amicable. The parties have clashed on issues related to the children almost continuously since the time of their divorce. In September 2012, their constant bickering finally made its way into the courts when Mother filed a petition to modify the parenting plan, …

[T]he animosity between the parties extended to their respective families following the divorce. The events recounted by the parties at trial demonstrate how those relationships had further devolved to a point where the families were almost incapable of civilized discourse. For instance, Mother allowed the children to attend Father’s and Stepmother’s wedding with the expectation that they would be returned home at a specific time. When Father’s sister brought the children home two hours later than the specified time, there was a verbal altercation between Mother, Mother’s mother, and Father’s sister. According to the testimony at trial, Mother told Father’s sister that she wished someone had respected her enough to let her know the children would be late, to which Father’s sister responded that Mother did not deserve respect. Mother’s mother then told Father’s sister that “You’re all (Father’s family) disgusting.” ..

One incident that received a great deal of attention at trial took place during an art show at the children’s school. Mother, Father, Stepmother, and Mother’s mother all witnessed the incident and testified about it at trial. According to the parties, the children were showing Father their art work when Mother either indicated that it was time for them to leave or asked to take a picture of the children. In any event, Father responded by stating that he was not finished talking to the children. From there, the parties’ accounts of the incident vary. Father testified that Mother “jumped out at [him]” and “started getting angry, pitching a fit, raising her voice.” Father testified that the parties’ son jumped in front of her and said “no mommy, don’t do this here.”

The mother’s counsel objected to the testimony about the child’s statement by claiming that the statement was hearsay, and thus inadmissible.  The trial court decided to allow the testimony regarding the statement and relied on it during the Court’s ruling.  The Appellate Court said:

The court characterized Mother as confrontational and expressed concern with her temper and volatility. Notably, with regard to the art show incident, the court found that … the child’s attempt to calm Mother during the incident “speaks volumes.”

The Court found that it would be in the best interests of the child to live with the child’s father.  The mother appealed stating, in part, that the trial court should not have allowed the testimony about the child’s statement and should not have relied upon it during the Court’s ruling.  The child’s father argued that the statement “no mommy, don’t do this here” was a command, not a statement, and therefore not hearsay.

Was the statement hearsay, or not?

The judges in the Appeals Court made short work of the argument, because they know the rules pretty well.  Particularly those that are well settled.  The Court said:

[W]e agree with Father’s assertion that the child’s statement was a command, and, therefore, not hearsay.

“[C]ommands or instructions are not hearsay if they are not offered to prove the truth of the matter asserted.” State v. Cartmell … In State v. Payne, the Court of Criminal Appeals held that a declarant’s instruction “Derek, don’t shoot. Derek, don’t shoot,” did not qualify as hearsay because it was not offered to prove the truth of the matter asserted. … Likewise, in this case, we conclude that the child’s statement “no mommy, don’t do this here,” does not qualify as hearsay. Therefore … the trial court … did not err in admitting the statement.

So there you go.  The rule isn’t all that complicated, but I think judges tend to block out of court statements out of an abundance of caution.  However, in being too cautious some important testimony gets lost.


What you need to know.

Lawyers are charged with knowing:

  • State law
  • State rules of procedure,
  • State rules of evidence,
  • Appellate cases interpreting all of those laws and rules,
  • Regulations adopted based on state statutes,
  • Local rules of the county where your case is,
  • Chamber rules, which are adopted by the judge hearing your case.
  • The style and predisposition of the judge hearing your case.


This is no small undertaking and is the reason it takes years of education to earn a J.D.   If you are in any type of family law matter (divorce, custody, child support, parentage, etc), you need the help of an experienced attorney that knows how the rules work.  Call me to find out how I can help you with your case.

Would you like to read the case for yourself?  I only used a tiny piece of it for this post.  Whitten v. Whitten