I was wondering how hearsay applies to recordings. If one party in a phone conversation admits to doing something irresponsible involving a child, say feeding a kid ice cream every night for dinner (real wrongdoing is more serious) and the other party says yes the child says you also fed him candy bars, can the recording be admitted? Is there an exclusion to the hearsay rule involving recordings? Can the judge listen to the whole thing but discount the hearsay part and consider the admissions only as fact? This recording is a highly relevant, make or break the ruling, recording.
Thanks
If the folks in the recording are parties to he lawsuit (the parents in a custody suit) the recordings are “admissions of a party opponent”, which is an exception to the hearsay rule.
What if the children in the custody suit are on the recording? Is that also hearsay?
Would the comments made by the kids also be exception to hearsay? In the recording I am referring to the children are talking about an incident of abuse that they had just endured by their mom. She is also on the same recording, verbally abusing everyone. She leaves. The kids keep talking. They are scared of her.
Is this covered by the exception to hearsay?
Thank U
The tape of the children talking would likely be excluded by the hearsay rule, however you could attempt to have the same admitted by stating that the evidence is being presented as evidence of the “effect on the listener” (the children).
The part with the children on it is on the same recording, ie, same incident as their mother and her verbal abuse. It is of me, with the kids, after she left the scene. It’s all one continuous event.
Does that make any difference? I think maybe from your response that it sounded like I was descrbing an incidence in which I recorded these kids talking about their mom. It was spontaneous. Everyone was there for the abuse, and once she left, the kids were talking and complaining about what she had just done.
Thank U
You being on the recording and the circumstances of the recording do not change my earlier response.
Re: your comment about the “effect on the listener”:
Would this fall under the rule of evidence regarding hearsay, called “the residual exception”?
In the federal rules of evidence, it is known as Rule 807 (and I assume that there is a NC equivalent).
Would effect on listener fall under this part of Rule 807:
“(A) The statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence”
Since the whole point of asking for this to be admitted would be to prove that these kids have been subjected to their mother’s abuse, would this residual exception cover their remarks after she had left the scene? Meaning, could ANYTHING be more “probative” than the statements of these traumatized kids?
Is that what you mean by “effect on listener”? Otherwise I cannot find anything in the rules of evidence about hearsay that would create an exception called “effect on the listener.”
I want to be prepared.
Thank U
No, it would fit better under 803(3).
What does that mean about availability of declarant? They are with their mother now, and tyring to bring them into court would be a disastrous thing to do to them. Plus, they are out of state, even though NC is their “rightful home.” How does the availability of declarant fit into this exception to hearsay?
Thank U
For purposes of the rule, they are available.
So, do you mean that when I am explaining (I am guessing, under objection that this is hearsay) that this should be admitted as evidence, I just say that even though they ARE available, under NC GS rules of evidence, 803-3, it should be admitted, including the parts without the party-opponent–because it is evidence of their mental state of mind after their mother had left the scene, after her abuse had stopped?
Is that how one would explain or argue it?
I also noticed that it says under Rule 803, availability of declarant is immaterial. So it does not matter either way if they are or not available, this rule says that it’s admissible?
Once again, Thank You. I am indebted to you for your help.
Yes, you’ve got it. Best of luck.