Hearsay Exceptions

Are you involved in a divorce or child custody case involving hearsay testimony? An experienced divorce and child custody lawyer and team can guide you through the legal process to assist in exploring your options. You have one bite at the apple in the court system so make it count.

It is not unusual for evidence in parenting matters to involve hearsay. For example statements of the child may be relevant. “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.” Colorado Rule of Evidence 801(c). Hearsay evidence is generally not admissible as evidence unless it falls within a hearsay exception under the Colorado Rules of Evidence. King v. People, 785 P.2d 596. The burden of establishing a hearsay exception is on the party offering the hearsay. Some common hearsay exceptions in parenting matters follow:

Once common hearsay exception utilized in parenting cases is a “spontaneous present sense impression.” Colorado Rule of Evidence 803(1). It is “a spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.” Id. For example, sometimes a child describes their impression of an event to someone as the event is occurring. In People v. Czemerynski, 786 P.2d 1100 (Colo. 1990), a witness’ testimony that her daughter had identified an obscene phone caller as the defendant immediately after hearing the caller's voice was admitted as a spontaneous present sense impression.

Another common exception is an “excited utterance” which is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Colorado Rule of Evidence 803(2). For example, if a child who has just been harmed describes the harm to someone immediately after the harm occurred, or shortly thereafter, this can be considered to be an excited utterance.

A third common exception is a “then existing mental, emotional, or physical condition.” Colorado Rule of Evidence 803(3). This is a statement of a “declarant's previously existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).” Id. For example, in People v. Haymaker, the mother of a sexual assault victim was able to testify that the victim was distraught for several months after the assault. 716 P.2d 110 (Colo. 1986). Additionally, out of court statements regarding a victim's fear of a party defendant are admissible to explain the victim's state of mind. People v. Cardenas, 25 P.3d 1258 (Colo. App. 2000).

A fourth common exception is “statements for purposes of medical diagnosis or treatment.” Colorado Rule of Evidence 803(4). This includes “statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. For example, in People v. Martinez, statements made to a paramedic in response to standard questions were admissible because the victim's intent in making the statements was to obtain treatment. 18 P.3d 831 (Colo. App. 2000).

A knowledgeable and experienced divorce and family lawyer and legal team can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating on your behalf. You can focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at https://store.lexisnexis.com/products/colorado-family-law-with-forms-skuSKU02903. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation.