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ProveMyFloridaCase.com > Posts tagged "hearsay"

Hearsay within a Medical Record (Double Hearsay)

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019).   What about a party's statement within a medical record (double hearsay - hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such exception that could apply is an admission by a party opponent.  For instance, in Strong, a person driving a motorcycle collided with an SUV.  The motorcyclist sued the driver of the SUV.  An issue on appeal pertained a statement in a medical record by the motorcyclist’s...

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Then-Existing State of Mind Hearsay Exception

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind.  Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play.   For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and...

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Admitting a Business Record Under the Hearsay Exception

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it.   The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment. The recent opinion in Evans v....

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records. The proper foundation requires the witness to show that "(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by...

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Improperly Admitting Hearsay can still be Harmless Error

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

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A Promissory Note is NOT Hearsay

A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence. The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of...

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Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

Below is an example in a criminal trial of the exception to the hearsay rule referred to as admissions against party opponents when a party’s agent makes an out-of-court statement. Check out this article and this article for more on this important hearsay exception embodied in Florida Statute s. 90.803(18). In Osorio v. State of Florida, 41 Fla.L.WeeklyD547b (Fla. 4th DCA 2016), the police used a confidential informant to make an arrest in a drug case. The confidential informant happened to be a co-worker of the defendant (that had previously been arrested on an unrelated drug charge and turned into an...

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases. In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining...

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Excited Utterance Hearsay Exception

I have discussed that hearsay is inadmissible evidence. Again, hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla.Stat. 90.801(1)(c). While hearsay is inadmissible, there are exceptions that allow hearsay to be admissible at trial. One hearsay exception is known as an “excited utterance.” Typically, this hearsay exception is more applicable in criminal trials than civil trials. An excited utterance is a “statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of...

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Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Sometimes, a party will try to introduce hearsay by arguing that that the document/testimony is not being offered to prove the truth of the matter asserted (hearsay), but instead, is being offered for another purpose. This is an avenue to admit evidence that would otherwise be excluded under the hearsay exclusion.  This was the situation in the employment litigation case, Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015). In this case, the University terminated a tenured professor for cause and the professor sued. At trial, the University offered into evidence a report prepared by an...

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