QUESTION

About hearsay

Asked on Feb 01st, 2020 on Litigation - Arizona
More details to this question:
Already lost civil case, defended ourselves and never spoke up. Now in bk court, and bk judge read the case, and said he suspects this case could be more 50/50 and wants to hear more. The plaintiffs want charges to become criminal so that their debt can not be discharged. The civil court judge said that he did not see fraud so it cannot be brought up again. After 5 long years, we've found the banker who knew the whole reason for her gift and about the brothers. We want him to testify. Will this be an exception to the hearsay rule because the banker knew her feelings behind why she gifted me the money?
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1 ANSWER

Appellate Practice Attorney serving New York, NY
It's hard to answer your question because I don't know what you want the banker to testify about.  He can't testify about what he "knew", only about what occurred, in this case what somebody said to him. Hearsay is an out of court statement offered in evidence for the truth of the matter asserted.  If a statement is not offered for its truth, it is not hearsay.  Thus, if I ask you your age and you say "39", I can't offer that statement in evidence to show your age (unless a hearsay exception applies) but I can offer it to show that you understand English.  Are the statements to which the banker will testify being offered for their truth? Hearsay is considered less reliable than non-hearsay because a jury not only has to determine if the witness is lying (whch they have to do with qny evidence) but also whether the person who made the statement was lying, and they have to do this without being able to hear or observe the person making the statement.  There are many exceptions to the hearsay rule, most based on the inherent reliability of the type of statement.  For example, a statement against interest is an exception to the hearsay rule because people will generally not say something against their interest unless they're telling the truth.  An excited utterance ("Oh my god, Jim just shot Carl!") is an exception to the hearsay rule because people usually do not have the time or presence of mind to formulate a lie while in an excited state.  There is nothing in your question which indicates that the banker's statements fall withing any hearsay exception (of course, I don't know all the facts).  There could be an exception, however, based on who "she" (the person who made the statement) is.  If "she" is the other side to the dispute, the statement would not be hearsay - statements by opposing parties are not hearsay because they can always testify to contradict the statement if they want, and therefore the jury will have a chance to hear and observe the witness. 
Answered on Feb 03rd, 2020 at 2:02 PM

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