When dealing with any family law issue, there comes a time when somebody else’s statement or a document not written by a party becomes an issue. These documents are essential to any case and provide insight into the matter. They could be a statement from a witness who overheard or something, or a police report, or any other document. The issue that litigants run into with these documents is the rule of evidence for “hearsay.” While you may have heard the term “hearsay” before, in the court it has a very specific definition. Hearsay is defined by the New Jersey Rules of Evidence, Rule 801, as “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.” Basically, if an out of Court statement is made by a person who is not testifying, it cannot be used, unless it meets one of the exceptions. The Rules of Evidence has specifically delineated a list of twenty-seven (27) exceptions to the hearsay rule, such as a statement made by a party in the case and a document that is considered a “business record.”
However, what is key to look at is that the hearsay rule pertains to trials and hearings. When a party is filing paperwork with the Court, the first step is always an application or motion of some kind. The matter does not go directly to a trial. Therefore, for motions and applications, a litigant must look elsewhere for whether a statement is allowable or not. Rule 1:6-6, Evidence on Motions, governs the admissibility of a statement in a motion/application. The Rule states that “if a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible to which the affiant is competent to testify and which may have annexed thereto copies of all papers or parts thereof referred to therein….” Therefore, so long as a person is willing to sign a certification or affidavit, stating that everything in the document is on personal knowledge, such as something that witness saw or heard personally, it can be utilized in a motion or application and would not be excluded by the hearsay rule.
