Tuesday, March 8, 2016

Better Understanding the Hearsay Rule

"Objection, Hearsay!" This is a refrain heard daily in workers' compensation hearing rooms around Florida, the nation and perhaps the world. The "hearsay rule" is familiar to many attorneys, though some demonstrate a surprising lack of comprehension sometimes. 

Hearsay is a concept born of our Constitutional guarantee of being able to confront witnesses. The Sixth Amendment to the United States Constitution addresses a fundamental right afforded someone who is accused of criminal activity. It provides (italics are direct quote) that in that setting:

the accused shall enjoy the right . . . to be confronted with the witnesses against him.

This and several other rights are included in the Sixth Amendment. In America, we believe that people have rights because the people exist. We do not believe that government gives people rights and we make government demonstrate significant need when it seeks to impair people's rights. I am sometimes surprised how many people I run into who have never read the entire document. It is worth the time. 

This constitutional provision is applicable as a guarantee only in criminal proceedings. However, most states have recognized an importance of "confrontation" even in civil court proceedings. That recognition is likely tied more to the "due process clause." Due Process is a concept so revered it is in the Constitution twice, in the Fifth and Fourteenth Amendments. A result of this respect for due process, cross-examination or "confrontation," is the "hearsay rule." 

First, what is hearsay? Essentially, hearsay is any out-of-court statement that someone wants to introduce in a trial proceeding, with the intent that the statement will prove the truth of what is stated. That is a wordy definition. To be more succinct, hearsay generally is something said or written outside of court, introduced to prove that the statement is true. In Florida, we define this in Fla. Stat. 90.802.

The "truth" element is misunderstood by a few, misinterpreted by some, and ignored by too many. Some examples may be helpful. As three people stand on a street corner, a vehicle accident occurs. Shocked by the event, on person exclaims "wow, what a noise," another says "that light was red," and a third says "call an ambulance, people are hurt." A witness hears all of these statements. None of these were said in a court or hearing room, they were said on a street corner. All are therefore "out-of-court" statements. 

In a later (likely months or years later) court proceeding, assume that this witness is called to testify. She is asked "what did Ms. Jones say after the accident;" our witness says "Ms. Jones said "wow, what a noise." Objection, hearsay! Is the lawyer trying to prove the extent of the noise? Unlikely. More probably, this testimony might be introduced to illustrate how surprised Ms. Jones was by the accident. Since the point of having our witness repeat this is not to prove that the accident was in fact loud, this would likely not be hearsay. 

Then our witness is asked, what did Mr. Smith say, and she testifies "she said, 'that light was red.'" Objection, hearsay! Is the lawyer trying to prove the light was red? The likelihood is probably yes. This statement is therefore more likely to be considered hearsay, as it is being introduced to prove the color of the traffic signal at the time of the accident.

Finally, our witness testifies that Mr. Green said "call an ambulance, people are hurt" as soon as the collision occurred. This is examined in the same context. Is this statement introduced to prove that people needed medical care? That is unlikely. Instead, this more likely proves only that Mr. Green thought the accident was significant or even serious, or that Mr. Green is prone to jumping to conclusions. 

The key test in all three statements, is whether the truth of what was stated is at issue in the case. If the judge decides a statement is hearsay, there may be more to think about. Even when a statement is hearsay, most states have a long list of statements that are allowed into evidence even though they are hearsay. Many such exceptions were developed by courts over time, and were then stated in the Federal Rules of Evidence, and later various state evidence codes. 

In Florida, the evidence code divides these "exceptions" into situations in which the "declarant" or person making the statement (not our witness, but Ms. Jones, Mr. Smith or Mr. Green) is "unavailable" for trial or not. To use some exceptions, found in Fla. Stat. 90.804, one must demonstrate that the person who made the statement cannot be brought to the trial or hearing. For other exceptions, found in Fla. Stat. 90.803 it is irrelevant whether the declarent is available or not.

WorkCompCentral had a recent report in which a court "dodged" the hearsay issue and upheld a welder's claim for workers' compensation benefits. A jury in Ohio awarded benefits to a welder for a repetitive motion injury. He had to raise his face shield to examine work and lower it to weld again, and this occurred multiple times. He described that he lowered his plate with a neck motion, instead of using his hands, about 100 times daily. Over the seven years he worked for the employer he believed this occurred thousands of times. 

Eventually, he perceived neck pain, and then left arm symptoms. He was diagnosed with herniated discs in his neck and sought payment for his injury through the Ohio workers' compensation system. He was awarded benefits "for a neck sprain," but his "claim that his work had caused the disc herniation by aggravating a preexisting condition in his neck" was denied. 

The worker sought relief through an appeal in a constitutional court, and "a jury found that the disc herniations were not caused by Woods' work, but that he had suffered a compensable aggravation of the disc herniations." The case proceeded from there to an appellate court. 

There, one of the issues was whether there was sufficient evidence that the worker "suffered from a pre-existing disc herniation," and "that his work caused the degenerative disc to herniate."

The court explained that "a non-testifying doctor's diagnosis can be entered into evidence if the diagnosis is in a report that was produced in the regular course of the doctor's business." This sounds like one of the Florida exceptions to the hearsay rule, the "business records exception." Essentially, the doctor's opinion on diagnosis was stated out-of-court, in a medical record. The reason to admit it would be to prove that diagnosis of a pre-existing herniated disc, and so is likely hearsay. 

The next part of the analysis would be whether the diagnosis is admissible as evidence despite being hearsay. This is whether the statement fits within any of the exceptions to the hearsay rule. If the doctor were out-of-state, or had passed away, then the analysis might turn to the "declarant unavailable" exceptions (Fla. Stat. 90.804). Otherwise, the consideration might likely focus on the broader exceptions for which availability is not critical (Fla. Stat. 90.803).

The Ohio court held that the medical record was admissible. It did not provide a specific reason, but the description makes it likely Ohio has an exception similar to Fla. Stat. 90.802(6), which says (italics are direct quote):

the following are not inadmissible as evidence, even though the declarant is available as a witness:

(a)A memorandum, report, record, . . . of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness . . . 

So, because the doctor kept records in which she or he recorded diagnosis and other opinions, that record could be submitted into evidence to prove the medical diagnosis. The custodian of the records (person who keeps them and maintains them) is needed for this exception to work. So both sides in the case, because this custodian would testify, knew that these records would possibly be introduced as evidence.

Some would question where is the "due process" in this outcome? Well, the party that doubts the diagnosis or conclusion in the records, alerted to the potential use by the record custodian's deposition, could then choose to depose the doctor, or subpoena her/him to court. Then, in that testimony of the doctor, the party could have the opportunity to cross-examine (confront) the witness about the record/document, the conclusions, and the process used to reach them.

The WorkCompCentral article included "dodged" in its headline. This is not likely a reference to the hearsay rule and the exception. The "dodge" is likely a reference to the Court's additional statement included after its legal analysis of the hearsay question. The Court also said "even if the trial court erred in admitting the opinion of Wood's original treating doctor, the error was not prejudicial."

Appellate courts look for error. But, more importantly, the legal system accepts that humans make mistakes, and error occurs. The ultimate question for appellate courts is often not whether error occurred, but whether that error mattered, that is whether it was "prejudicial." So, the Ohio court tells us that admitting the medical record was not improper, likely using an exception like Florida's, and that even if admitting it was improper, the complaining party did not demonstrate that the error was prejudicial. So, winning on appeal may require proof of error and proof that the error could have changed the outcome or result at trial. 

It is important to remember that these evidence rules may be relaxed in worker's compensation proceedings in various states. Some states, like Florida require Judges to follow the evidence code or rules. Other states have special rules of evidence just for workers' compensation cases. And, some states have no evidence rules at all in workers' compensation proceedings. An excellent analysis of special rules for the admission of written records in workers' compensation specifically was published by Hon. David Torrey. 

So hearsay can be a complex subject. The first question is whether the truth of the matter stated is something that the party is trying to prove. Many will skip over this step and immediately begin looking for a hearsay exception to argue for admission into evidence, but the first step of "truth," may avoid that effort. If the truth is an issue, then the analysis of hearsay exceptions may become necessary. The second question in that path would likely be "is the person that said that available or not." That would direct consideration to the exceptions under the two alternative exception rules. 

Though some may struggle with the hearsay rule and the many exceptions, there may be some comfort in knowing that lawyers and judges also struggle periodically.

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