HearsayThe legal definition of hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. See Rule 801(c) of the Arizona Rules of Evidence. More simply, it’s going into court and telling the judge something someone else told…Read more about Hearsay in the Depp v. Heard TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial and How Hearsay is Different in Arizona Family Law Trials
For the past few weeks, leading up to this week’s verdict, the media closely covered the controversial Depp v. Heard trial. Those who followed along and specifically, watched the parties be cross-examined, likely heard (no pun intended) either Depp’s legal team or Heard’s legal team object to a question on the BasisA tax term describing the price a taxpayer paid to acquire a property. When a property or asset is sold, basis is deducted from the selling price to determine whether there is a taxable gain or loss. For items awarded in a divorce, those items are not taxed as part of the divorce…Read more about Basis of HearsayThe legal definition of hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. See Rule 801(c) of the Arizona Rules of Evidence. More simply, it’s going into court and telling the judge something someone else told…Read more about Hearsay. In fact, the objection was so common, it appears Depp began anticipating it and at one point, after answering a question, stated, “that’s hearsay, I guess” Heard’s legal team (and those watching) will always remember that as the day they cross-examined Captain Jack Sparrow.
The “lesson” on hearsay from Captain Jack Sparrow was an unexpected component of the Depp v. Heard TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial but it highlighted a legal issue that is often misunderstood. What is hearsay? Why is it inadmissible? How hearsay is treated differently in civil trials, like the Depp v. Heard trial, compared to family law trials?
Hearsay (simplified)
Hearsay is an “out-of-court statement offered to prove the truth of whatever it asserts” (helpful, right?). Hearsay is better demonstrated by example:
Issue: Who robbed the bank?
Facts:
- Adam is being investigated for robbing the bank
- Adam claims he innocent
- Bob saw Adam rob the bank
- Bob told Charlie that he saw Adam rob the bank
- Adam called David at 2PM
TestimonyThe sworn statements of a witness made at a trial or deposition.Read more about Testimony:
- Charlie testifies in Court Bob told him Adam robbed the bank
- David testifies Adam called him at 2PM
Charlie’s testimony is hearsay. Why? Because Charlie’s TestimonyThe sworn statements of a witness made at a trial or deposition.Read more about Testimony relies on an out-of-court statement (Bob telling Charlie that he saw Adam rob the bank) to prove the truth of whatever it asserts (that Adam robbed the bank).
Charlie’s testimony, if objected to, is likely inadmissible (not allowed). Why? Because Adam’s legal team does not have the opportunity to cross-examine Bob – how can they question whether Bob saw Adam rob the bank, where he was StandingRefers to one’s ability to bring a case on a certain subject. Generally, you have to be one of the parties directly impacted by a case to bring suit. For example, let’s say Brad and Paula are married to each other. Paula’s father, Ed, does not like Brad and wants Paula to divorce…Read more about Standing, whether he was wearing his glasses, whether he knows Adam or has a grudge against Adam, etc. Adam’s legal team only has the opportunity to cross-examine Charlie – whose testimony is based on what Bob saw/said. In other words, Charlie’s testimony is unreliable and Adam’s legal team is unable to properly defend Adam. Instead, Bob needs to testify. That said, there are several exceptions, which outline when hearsay is AdmissibleEvidence the judge allows to be presented in court because it the requirements of the rule of procedure. Generally, to be admissible, evidence must have been timely disclosed to the opposing party, prepared as an exhibit and submitted to the Court ahead of time and by the Court's…Read more about Admissible [Rule 803 of the Rules of Evidence].
Hearsay in Arizona Family Law Trials
In sharp contrast to the Depp v. Heard trial, where objections on the basis of hearsay were as common as a sword fight or the drinking of rum in Pirates, objections on the BasisA tax term describing the price a taxpayer paid to acquire a property. When a property or asset is sold, basis is deducted from the selling price to determine whether there is a taxable gain or loss. For items awarded in a divorce, those items are not taxed as part of the divorce…Read more about Basis of hearsay are far less common in family law trials.
Why? Because the Rules of Evidence, including the rule regarding hearsay, do not automatically apply to family law.
In general, compared to civil law, the rules as well as what evidence/testimony can be considered are far more relaxed in family law for a few reasons.
- Civil trials take days to conduct and each PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party has ample time to present their evidence/testimony. Family law trials are condensed and usually take three (3) hours to conduct. As such, in this limited amount of time, parties can present more with the rules being relaxed.
- Civil trials take place in front of a jury. Family law trials take place in front of Judge. As such, instead of deeming evidence/testimony inadmissible, Judges can choose what they want to review, can choose to review more, and decide how much weight (or ConsiderationWhat a party is required to give up under the terms of a contract. Both sides must have consideration in order for a contract to be valid and enforceable. For example, A and B agree that A will walk B’s dog for $10. A’s consideration is the $10 that A is giving; B’s consideration…Read more about Consideration) they want to give a particular item/statement.
- There is precedent (case law) that in family law, a Judge’s primary responsibility is to safeguard children and to determine what is in the children’s best interests. To an extent, it is assumed, to fulfill this responsibility, Judges need to consider any RelevantAs defined by Black’s Law Dictionary, “Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” (Black’s 11th ed., 2019).…Read more about Relevant/significant information pertaining to the children, regardless of whether said information may violate the rules [See Hays v. Gama].
Invoking the Rules of Evidence in Family Law
In specific instances, a party may want the Rules of Evidence, including the rule regarding hearsay, to apply to their family law trial. To accomplish this, that PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party has to file a Notice of Strict Compliance with the Court and specifically ask to Invoke the RulesWhen a party requests strict compliance with the Arizona Rules of Evidence under ARFLP Rule 2. This means the personal knowledge, hearsay, foundation, and best evidence rules. See Rule 2.Read more about Invoke the Rules of Evidence [see Rule 2, Arizona Rules of Family Law Procedure].
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*This post is only intended to educate readers about hearsay objections (or the lack thereof) in Arizona family law trials. It makes no commentary on the serious subject matter that was addressed during the trial. It in no way supports the allegations or actions of either party in the Depp v. Heard trial, nor does it comment on the jury’s ultimate verdict.
